Archive for June, 2008

Supreme Court rules in right to counsel before indictment, limits to sentencing by Federal Appeals court, standing in civil cases

Monday, June 23rd, 2008

 June 23, 2008

[JURIST] The US Supreme Court [official website; JURIST ] handed down three decisions Monday, including , in which the Court ruled 8-1 that a person accused of a felony has the right to a lawyer at a probable cause hearing before a magistrate judge. The Court held:
We merely reaffirm what we have held before and what an overwhelming majority of American jurisdictions understand in practice: a criminal defendant’s initial appearance before a judicial officer, where he learns the charge against him and his liberty is subject to restriction, marks the start of adversary judicial proceedings that trigger attachment of the Sixth Amendment right to counsel.
The decision reverses and remands a Fifth Circuit ruling [opinion, PDF] that the right to counsel does not exist until a defendant is indicted on charges. Read the Court’s per Justice Souter, a filed by Chief Justice Roberts, a filed by Justice Alito, and a [texts] filed by Justice Thomas. AP has more.

The Court also ruled 5-4 in , finding that a plaintiff who was assigned the right to pursue a claim, but who does not stand to gain anything from the claim, nonetheless has standing to sue. Sprint argued that APCC lacked standing to sue for revenue from coinless long-distance telephone calls because it had promised to turn over any award to pay-phone service operators. The Court rejected this argument:
The aggregators’ injuries relate to the failure to receive the required dialaround compensation. And if the aggregators prevail in this litigation, the long-distance carriers would write a check to the aggregators for the amount of dial-around compensation owed. What does it matter what the aggregators do with the money afterward? The injuries would be redressed whether the aggregators remit the litigation proceeds to the payphone operators, donate them to charity, or use them to build new corporate headquarters. Moreover, the statements our prior cases made about the need to show redress of the injury are consistent with what numerous authorities have long held in the assignment context, namely, that an assignee for collection may properly bring suit to redress the injury originally suffered by his assignor.
The Court’s decision upholds a [PDF text] by the US Court of Appeals for the DC Circuit. Read the Court’s per Justice Breyer, and a [texts] filed by Chief Justice Roberts and joined by Justices Scalia, Thomas, and Alito. AP has more.

In  the Court ruled 7-2 that a federal circuit court cannot take steps to lengthen a convict’s sentence in the absence of any government appeal requesting such an extension:
The strict time limits on notices of appeal and cross-appeal would be undermined, in both civil and criminal cases, if an appeals court could modify a judgment in favor of a party who filed no notice of appeal. In a criminal prosecution, moreover, the defendant would appeal at his peril, with nothing to alert him that, on his own appeal, his sentence would be increased until the appeals court so decreed.

The decision reverses and remands a ruling [PDF text] by the Eighth Circuit. Read the Court’s per Justice Ginsburg, and a [texts] by Justice Breyer. Justice Alito filed a [text], joined by Justice Stevens and joined in part by Justice Breyer.

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Despite Business Efforts to limit law suits: The Tort War Is Raging On

Sunday, June 22nd, 2008


JONATHAN D. GLATER  New York Times  June 22, 2008

IN a Washington ballroom bedecked with flags honoring explorers who overcame oceans and mountains to pursue international trade, Thomas J. Donohue congratulated the assembled modern merchants — a group of executives, lobbyists and lawyers — for challenging a more mundane adversary.

“It took guts, bravery and vision to get behind what must have seemed like an insurmountable task — taking on the powerful trial bar,” said Mr. Donohue, the chief executive of the United States Chamber of Commerce. “We have succeeded beyond our expectations.”

There were plenty of reasons for self-congratulation at the dinner, held earlier this month to commemorate the 10th anniversary of the chamber’s Institute for Legal Reform. Some of the best-known plaintiff-side lawyers in the country — Richard F. Scruggs, Melvyn I. Weiss and William S. Lerach — have all pleaded guilty to charges that they tried to manipulate the justice system. The very phrase “trial lawyer” has become associated with unadulterated greed; the Association of Trial Lawyers of America now calls itself the American Association for Justice.

But it is still too early to declare an end to the so-called tort wars, a decades-old conflict over the rules governing civil lawsuits. Corporate interests have won several potent victories, but trial lawyers continue to try to undo legislation restricting litigation and are pursuing new strategies of their own.

Businesses count among the victories federal legislation passed in 2005 that made it harder to file class-action lawsuits in state courts, where judges and juries were often perceived as hostile to business. In state courts, where most civil litigation plays out, the number of suits involving auto accidents, allegations of medical malpractice and the like fell steadily from 1995 to 2005, according to the National Center for State Courts. The Chamber of Commerce says the number of megaverdicts for more than $100 million dropped to 2 last year, from 27 in 2000.

NEVERTHELESS, there are battles in individual states over judicial campaigns and legislative initiatives. The number of class-action lawsuits filed in 88 federal courts rose 72 percent from 2001 to 2007, partly because of that 2005 law. (Presumably, the number of class actions in state courts has fallen, although this data is hard to come by.) And while a study released in December by Towers Perrin, the consulting firm, found that total “tort costs” fell in 2006, it predicted that costs would rise as a souring economy prompts more lawsuits.

The chief executive of the American Association for Justice, Jon Haber, is skeptical of the results of spending by the Chamber of Commerce and its members to hobble lawsuits. And he defends the new name of his organization as reflecting what it does, rather than who its members are.

“The chamber’s political portfolio looks a lot like the portfolio of many Wall Street banks these days — a large number of bad bets that did not pay off but cost their members an awful lot of money,” Mr. Haber said.

He can rattle off recent victories for trial lawyers as quickly as he can list the goals his members hope to achieve. Voters in Washington State, for example, last year approved a bill that allows people to collect triple damages if an insurer unreasonably denies a claim.

In Colorado, an initiative to limit lawyers’ fees was answered with a barrage of proposals that would limit executive compensation, cap real estate sales commissions and raise the maximum amount of damages payable as a result of shoddy construction, among other things. All the initiatives were eventually withdrawn.

At the federal level, trial lawyers are pushing for a law that would make it easier for consumers to sue instead of having to submit to binding arbitration, as many contracts — for credit cards, for example — now require. The trial lawyers are also trying to make it harder for defendants to keep legal proceedings secret. “There are a number of things that are very much pro-civil justice that are starting to work through Congress,” Mr. Haber said.

Strikingly absent from debates over who should be able to sue whom, when and for how much is any discussion of the fairest and most effective way to make sure that true victims are appropriately compensated for injuries and that people without authentic injury are not compensated.

“That’s not the conversation we’re having,” because the only voices heard belong to advocates of one side or the other, said Robert L. Rabin, a law professor at Stanford. “Those advocates reflect advocacy interests — that is, either defense-side interests or plaintiff-side interests — rather than some overview of global fairness.”

Civil lawsuits seek to compensate victims of negligence or wrongdoing, like the unlucky passer-by hit by a falling piano. But how much of a penalty should such suits exact, above and beyond compensation, in order to deter wrongdoing? What about someone traumatized by the sight of the accident, or maybe a whole class of potential victims? And whom can these people sue — the movers, the piano’s maker, its owner?

The tort wars over such questions have waxed and waned for decades since the Industrial Revolution and the concurrent growth in industrial-scale accidents, said John Witt, a law professor at Columbia University.

“There are commencement addresses at law schools in the 1890s,” Professor Witt said, “where old railroad lawyers are lamenting the rise of a new class of oftentimes immigrant lawyers who don’t have access to the old ways of getting clients, and they strike out on this new business model” of actively seeking clients and charging them a fee that is a percentage of whatever was won in court.

The fight to change tort laws has developed into a big business in itself, with plenty of people invested in keeping the battle going. Neither Mr. Haber nor Mr. Donohue would say flatly that his side was winning. Doing so would make it harder to lure contributions — a point made by people on both sides of the debate.

Officials at the Institute for Legal Reform, the chamber unit, would not specify how much it spends annually on media and publicity campaigns, except to say it’s in the millions. And many organizations, nationally and in the states, lobby on both sides.

But the chamber itself, which represents millions of businesses of all sizes, is the biggest spender on the lobbying. In 2006, it spent $72.7 million, according to the Center for Responsive Politics, a nonprofit research group that tracks money in politics. On the trial lawyers’ side, the American Association for Justice spent $8.3 million that year.

Those numbers do not paint a complete picture, though. For years, business lobbyists say they focused on getting favorable legislation passed. But the restrictions enacted often proved vulnerable to legal challenges — and in states that elected judges, trial lawyers were historically more active in contributing to judges’ campaigns.

Business advocates needed to adjust their thinking, said Steven B. Hantler, chairman of the American Justice Partnership, another organization that is seeking to change the civil justice system in opposition to the trial bar.

“If you were to ask a corporate lawyer, when does the litigation process start, the corporate lawyer would say, when the lawsuit is filed,” said Mr. Hantler, a former head of the chamber’s legal reform institute. “The trial lawyer would say, not at all. It starts when judges are appointed or judges are elected, and when laws are made.”

AS an assistant general counsel at the former DaimlerChrysler, Mr. Hantler was ordered by Robert J. Eaton, then co-chairman, to come up with a way to help shield from legal challenge any new laws curbing litigation.

“I remember sending Bob an e-mail shortly after the Ohio Supreme Court — this must be in 1999 — struck down tort reform legislation,” Mr. Hantler recalled. “Within an hour and a half, I was summoned to his office.”

Mr. Hantler told his boss that focusing on legislation was not enough. Mr. Eaton then instructed him, Mr. Hantler said, to develop a comprehensive strategy for changing the law.

On DaimlerChrysler’s dime, Mr. Hantler convened a meeting in the Washington offices of Gibson Dunn & Crutcher, a law firm. Among those present, Mr. Hantler said, were Theodore B. Olson, a partner at the firm who was later named solicitor general; Mike Murphy, who was a top strategist for John McCain’s presidential campaign in 2000; Clark S. Judge, a former speechwriter for Ronald Reagan who went on to the White House Writers Group, a communications firm; and Robert H. Bork Jr., who is the son of the former Supreme Court nominee and has his own firm, now called the Bork Communication Group.

They came up with what Mr. Hantler described as a multipronged strategy, involving advertising aimed at voters picking judges and continued lobbying of lawmakers. This “demonstration project,” as Mr. Hantler called it, was successful enough that the Institute for Legal Reform has expanded it over the years. At the same time, businesses have become more active in state supreme court judicial campaigns and, in the 2006 election cycle, gave twice as much as lawyers did, according to the National Institute on Money in State Politics. (In previous cycles, sometimes companies gave more, sometimes lawyers gave more.)

To help deliver a pro-business message, advocates have hit upon a ranking system. One list ranks “judicial hellholes,” as compiled by the American Tort Reform Association, and another identifies those states deemed by corporate general counsels to be most and least friendly to businesses. (That list comes from the Chamber of Commerce.)

In Mississippi, which received the worst ranking on the chamber’s list, advocates of limits on lawsuits made a special effort. In 2002 and 2004, state lawmakers passed legislation that, among other things, capped how much plaintiffs could recover in punitive damages and in noneconomic damages — compensation for pain and suffering, for example.

But Lance L. Stevens, a Mississippi lawyer and former president of the state’s association of trial lawyers, said that even after the changes to the tort laws, the state has moved up in the ranking by only a few spots. General counsels at big corporations are not critical of Mississippi because of its legal system, he said. “It is the corporate lawyers for the Fortune 500 companies expressing their general disgust for Mississippi and their mistaken belief that we are culturally retarded.”

Lisa Rickard, president of the chamber’s Institute for Legal Reform, said that the new laws limiting lawsuits in Mississippi had not been on the books long enough to have more of an effect. “It takes a long time to come out of it,” she said.

Corporate executives say they want limits on noneconomic damages in order to reduce unpredictability in jury verdicts. But the caps hurt the very people who most need help — low-income people who sustain injuries, Mr. Stevens said. People who earn a lot of money can claim significant lost income as part of their injury. The unemployed, children, the elderly or anyone else with little earning potential stands to recover less for the same injury than someone in the work force. Plaintiffs’ attorneys often get a percentage of the amount awarded to a client, so the limits mean they have a greater incentive to sue on behalf of a rich injured victim than a poor one.

“I have not filed a lawsuit for a child or a stay-at-home mom in a medical malpractice claim since 2002, because they regrettably lack economic value in the tort reform scheme” now in place in Mississippi, Mr. Stevens said.

At the federal level, legislation making it easier to move class-action lawsuits out of state courts was the major achievement for business advocates. They wanted to prevent lawyers from filing nationwide class actions in courts in counties, like Madison County in Illinois, that were perceived as hostile to corporate defendants.

But all of the consequences of that law, passed in 2005, are not yet clear. Although the number of lawsuits that defendants shifted to federal courts rose after the law was passed in 2005, a report released in April by the Federal Judicial Center, a research and education agency created by Congress, found that the number of such shifts has since fallen. On the other hand, the number of class-action suits filed initially in federal courts has risen. And no one has reliable data on the total number of class-action suits filed in state courts.

PLAINTIFF-SIDE lawyers are innovating. Some firms are looking to courts outside the United States.

“If, for example, you have a company that defrauds its shareholders, shareholders around the world who invested in that company in any market should have the same rights to recover,” said Michael D. Hausfeld, partner at Cohen Milstein Hausfeld & Toll, which has opened an office in London and is allying with law firms in several countries. While the firm itself is not lobbying for legal changes to make it easier to sue in foreign courts, Mr. Hausfeld said, “we are involved with others who are doing that.”

So, despite some very high-profile casualties, the tort wars aren’t over. They may just be going global.


U.S. Supreme Court protects Business free speech re: Unions

Sunday, June 22nd, 2008

By Tony Mauro  First Amendment Center legal correspondent   6.20.08

 WASHINGTON — In recent years, the Supreme Court has shown as much interest in protecting the free-speech rights of corporations as it has in the protecting the expression of individuals, if not more.
That trend continued yesterday when the Court decided Chamber of Commerce v. Brown, an endorsement of business free speech as an important element of the free marketplace.
By a 7-2 vote, the Court ruled that federal labor law prevents California from restricting the ability of employers to speak out against union organizing.
The state law, according to the Court, violated “Congress’ express protection of free debate” concerning unionization, and congressional desire to avoid regulation within “a zone protected and reserved for market freedom.”
Justice John Paul Stevens, writing for the majority, said, “The explicit direction from Congress to leave noncoercive speech unregulated makes this case easier.”
The California law, similar to statutes on the books or under debate in 20 other states, said that any employer receiving state funds through grants or contracts cannot use those funds — even when commingled with other money — to “assist, promote or deter union organizing.” The law also established what the Court said was a “formidable enforcement scheme” that required employers to maintain records that would establish whether state funds they received were used for purposes related to union organizing.
Businesses and right-to-work advocates viewed the law as a union-driven tactic to enlist states in undercutting the aims of the federal National Labor Relations Act, which protects companies’ right to speak out on unionization, so long as it not coercive. The U.S. Chamber of Commerce took the state to court, winning at the district court level, but the 9th U.S. Circuit Court of Appeals reversed, ruling that the state law was not preempted by federal law. The Supreme Court, as it often does, reversed the 9th Circuit decision.
“The law was nothing more than an underhanded attempt by union officials to use public funds to corral California workers into their forced dues-paying ranks, and the high court was correct to find that the law is pre-empted by federal labor law,” said Stefan Gleason, vice president of the National Right to Work Legal Defense Foundation, which advocates measures that prevent employees in unionized workplaces from being coerced to join unions.
Steven Law, chief legal officer and general counsel for the U.S. Chamber of Commerce, applauded the decision as well. “Today the Supreme Court declared that it’s unlawful under the National Labor Relations Act for a state to muzzle employers’ speech rights.”
Yesterday’s decision also fits into a trend this term in which the Court is adopting the preemption doctrine — under which federal law trumps state law in the same area — at the behest of corporations that prefer to live under one set of federal rules rather than the differing regulations of 50 states.
Justice Stephen Breyer, joined by Justice Ruth Bader Ginsburg, dissented in the case, asserting that the California law did not amount to a regulation that was pre-empted by federal law.
Breyer said the California law does not prevent employers from speaking out on union organizing. “It simply says to those employers, do not do so on our dime.”

‘Claim of Privilege: A Mysterious Plane Crash, a Landmark Supreme Court Case, and the Rise of the State Secrets Privilege

Saturday, June 21st, 2008



How the widows of three men killed in an Air Force plane crash were denied information, a decent settlement and emotional closure when the U.S. government exercised its ‘state secrets’ privilege.


Book Review by Edward Lazarus  June 22, 2008


IN LEGAL circles these days, it is much in vogue to praise the doctrine of stare decisis — a fancy Latin term for giving great deference to past court decisions rather than rethinking legal principles anew. This idea feels quite benign. What could be terribly wrong or dangerous about yielding to the accumulated wisdom of the past?

In “Claim of Privilege: A Mysterious Plane Crash, a Landmark Supreme Court Case, and the Rise of State Secrets,” Pulitzer Prize-winning (and former Los Angeles Times) reporter Barry Siegel shakes us out of this complacency. Past court decisions, he vividly reminds us, sometimes bubble up from a swamp of unexamined lies and exaggerated fears. Yet we invoke them broadly, reflexively and with great potential consequence, as though they automatically deserve our obedience and approbation.

The focus of Siegel’s carefully researched book is the 1953 Supreme Court decision in United States vs. Reynolds, which first enshrined into law the “state secrets privilege.” Under this doctrine, the executive branch may refuse to turn over evidence to individuals suing the United States (and often get the claims dismissed) simply by asserting that release of the information sought after would threaten national security. U.S. Chief Justice Fred Vinson’s opinion, issued at the height of Cold War hyperconcern with national defense, goes so far as to instruct trial judges that, in some circumstances, they should accept the executive branch’s privilege without conducting their own private examination of the documents at issue to test the plausibility of the claim.

As Siegel accurately observes, the Reynolds decision is “an act of faith.” It makes sense if we generally trust executive branch officials to invoke the doctrine only when national security is genuinely at stake and not merely to cover up governmental blunders or protect an administration’s political interests. And therein, Siegel painfully demonstrates, lies the rub.

The Reynolds case arose from the October 1948 crash of a B-29 Superfortress bomber over Waycross, Ga. The plane was on a secret test flight associated with the government’s race to design a long-range guided missile system to bolster its Cold War arsenal. Of the 13 passengers and crew, nine were killed, including three civilian engineers from Radio Corp. of America, who were working on the sophisticated electronics necessary for the enterprise.

The widows of the civilians sued the government under the Federal Tort Claims Act, alleging that their husbands’ deaths had resulted from the government’s negligence and seeking compensation of at least $300,000 apiece (that’s more than $2 million in today’s currency). Represented by the ultra-establishment Philadelphia attorney Charles J. Biddle, the widows naturally sought access to the witness statements and accident reports prepared by government investigators who had flocked en masse to the crash site. The widows had no idea why the military plane had precipitously fallen from the sky — and these reports were surely the best evidence on the subject.

The government immediately resisted turning over the reports, but not because they contained state secrets. Instead, the U.S. initially claimed that revealing these materials as part of a lawsuit against the government would have a deleterious effect on future inquiries into aviation safety because, in the absence of confidentiality, witnesses and investigators would pull their punches.

It was only after it became apparent to Justice Department officials that this strategy was not likely to succeed — more than a year into the case — that they abruptly declared that the witness statements and investigative reports contained national security secrets, that disclosure would endanger the national defense and, most important, that the executive branch’s decision to invoke the state secrets privilege could not be reviewed by the judicial branch.

The lower courts rejected the executive branch’s claim of absolute power: They declared it to be inconsistent with our system of constitutional checks and balances. These courts gave the executive branch a choice: Either turn over the documents to the trial judge for a private assessment of the privilege claim or default on the widows’ lawsuit and pay damages. But the Supreme Court saved the government’s bacon, declaring, in pseudo-Solomonic fashion, that courts should ordinarily (and in the widows’ case) defer to the executive branch’s claim without further inquiry. Deprived of access to key evidence, the widows settled for a modest sum.

As Siegel reveals — and this is no shock to the cynics among us — the privilege claim was based on a lie. The suppressed documents, which were declassified in 1996, did not reveal anything about the guided missile program or contain any other national security secrets. Rather, they added to the considerable public information showing the tendency of B-29 engines to catch fire and revealed that the Air Force had failed to install heat shields on the engines of the plane that went down, despite a maintenance order calling for this retrofit. The reports also suggested some potential missteps by the crew after an engine fire put the flight in jeopardy.

In short, the Department of Justice asked the courts and the nation to trust it precisely when it deserved no trust at all. And in a political context heavy with the fear of Soviet spy schemes and international threats, the Supreme Court acquiesced, setting aside the skepticism of the lower court judges closest to the facts of the case.

Siegel tells this story with thorough, appropriate emphasis on the human element. He provides mini-biographies of the renowned attorneys who took up the widows’ quest and the distinguished lower court judges who sought to balance the competing claims of justice and security. Siegel also pays careful attention to an often neglected aspect of legal cases — the fact that court decisions inevitably provide either comfort or pain, sometimes in great measure, to the individuals involved. Here, as Siegel chronicles, questions unanswered for decades robbed the victims’ families of a fair measure of closure on the deaths of husbands and fathers deeply loved — not to mention greater financial security that a more appropriate settlement may have provided.

The real power behind Siegel’s book, however, comes from the contemporary backdrop against which we read it. Making claims that executive branch authority may not be reviewed are the Bush administration’s stock in trade. And claims of privilege, including the state secrets privilege, have become a particular favorite for stymieing whistle-blower lawsuits, investigation into potentially unlawful detention, surveillance programs and other problematic aspects of the war on terrorism.

Along these lines, Siegel cites a number of examples of how the Bush administration has invoked Reynolds to get lawsuits thrown out or to limit the rights of accused terrorists. Siegel’s criticism, though largely implicit, is unmistakable. He bristles at what he sees as an all-too-familiar combination of an executive branch bent on avoiding exposure or embarrassment coupled with a judiciary intimidated by claims of an imperiled national interest in a dangerous world.

The point is well taken, but it can also be overstated. Modern judicial history — from the Pentagon Papers case, to the Nixon tapes case, to the recent Supreme Court decisions rebuking the administration’s claims of exclusive power over “enemy combatants” — shows that the judicial branch has been far from supine when faced with executive branch overreaching, including unsubstantiated claims of national security.

Moreover, the reluctance of courts to second-guess executive branch judgments about national security is grounded in an important reality. By and large, executive branch officials are, in fact, better suited than isolated judges to determine whether the disclosure of particular information may really pose a national security threat. The shame of the Reynolds case, and the much more comprehensive tragedy of the time in which we now live, is that the executive branch has given us such powerful cause to be reflexively distrustful of any claim to secrecy. Until that changes, except in the most unusual of cases, we are left in the regrettable posture — to turn an old Reagan phrase — of being unable to “trust, but verify.” *

Edward Lazarus, a lawyer in private practice, is the author of “Closed Chambers: The Rise, Fall, and Future of the Modern Supreme Court.”


Friday, June 20th, 2008

Legislation passed in 2005 vastly increased the funding of Kentucky’s 120 County Law Libraries. Some libraries have experienced a 300% increase in funding.

 In 2007 the Legislature once again considered County Law Libraries and authorized them to place some or all of their resource materials in the local Public Library, and specifically authorized the purchase of online resources in addition to hardbound books.

In 2008 the General Assembly in writing an austere bare bones budget raided the excess funds in a number of state agencies.  Fortunately, the County Law Library system was not affected by the seizure of excess funds experienced by the Racing Commission and other Boards and Agencies.

It is altogether possible that during the next session of the General Assembly (January 2009), they may be looking to see what kind of stewards the local library trustees have been.

There is a rule that is well known to bureaucrats.  Spend your appropriation or lose it.

The Legislature in times of need looks at agencies such as the County Law Library system and determines if they are providing a public service or are they just hoarding their money in bank accounts.

The Trustees are required to select one of their members as a Treasurer (he must be bonded).  The treasurer is required by law to make an annual report to “the Circuit Judge” of their county, and to report every expenditure and all income and assets.

The Circuit Clerk collects a tax on all cases filed in the county and monthly disburses that money to the Trustees of the local County Law Library.

You should ask your library trustees what they are doing to provide the maximum amount of services allowed by their increased income. The County Attorney is a member of the library board.  The local Circuit Judge (or the Chief Judge??) should be able to provide you with a copy of their annual financial report. The Circuit Clerk can tell you who your Law Library trustees are.

The law also requires that all County Law Libraries provide access to their resources to “state and county officials” every day but Sunday, holidays excluded, but most courthouses are closed two days a week, bringing into question the compliance of the local Law Library.

A growing number of Law Libraries have solved their problem by buying a subscription to (which provides a complete online law library) for themselves AND for the local Public Library.   This creates good will in their community, and brings them into compliance with the six day a week mandate, since Public Libraries are open six days a week.

The bigger problem faced my many County Law Libraries is how to perform their statutory duties to provide legal resources.  Years of funding neglect by the state has created a mindset where they hoard every penny instead of providing resources.  A large number of County Law Libraries have been accumulating nice fat bank accounts instead of providing and sharing their resources.  When the auditors come, they may have to explain why they are hoarding state funds instead of fulfilling the function for which they were created.

We suggest that you give LawReader a call and see how you can bring your Law Library into compliance with KRS Chapter 172.  Call us at (502) 732-4617.  No other service offers more Kentucky Law than does

A special licensing program is available from LawReader with discounts for counties that also purchase a license for their local Public Library.  Some counties are fulfilling their duties by providing subscriptions to LawReader to their prosecutor, judges, and public defender. 

Counties that share Circuit and District Judges in a multi-county district can work out a cost sharing agreement for each to pay a proportion of the cost of subscriptions for their Commonwealth Attorney and Judges.

Of course, you can call the State Treasurer and ask him where to send your excess funds to help fatten the State General Fund.  Remember, the old saying, “Use it or Loose it!”

Kroger settles race discrimination suit for $16 million – Suit filed in Louisville Fed. Court

Friday, June 20th, 2008


June 20, 2008



The Kroger Co. has agreed to pay $16 million to settle a race discrimination lawsuit brought by 12 current and former employees, according to the chain’s chairman and chief executive. 

The workers claimed in the 2001 federal lawsuit that Kroger blocked promotions of black employees and paid them less than whites. 

A judge hasn’t yet approved any agreement in the suit, which was filed in U.S. District Court in Louisville in 2001 by employees in six states on behalf of black workers at Kroger nationwide since 1998. 

Chairman and chief executive David Dillon said in a memo to about 1,500 employees Tuesday that the money — minus attorney fees and administration costs — will be placed in a fund and disbursed among black employees who meet certain criteria. 

“We take our commitment to inclusion and our policies against discrimination very seriously,” Dillon wrote. “The plaintiffs … obviously felt strongly that the company was not treating them fairly or respectfully. No one in our company should feel this way.” 

The lawsuit seeks to change Kroger’s hiring, promotion and compensation practices. The workers also requested back pay, preferential consideration for jobs and damages for lost pay and benefits. 

Dillon said there has been no finding that the Cincinnati-based Kroger engaged in discrimination. 

An attorney for the plaintiffs, Joseph Sellers, said he would have no comment unless an agreement is finalized. 

The lawsuit named plaintiffs who worked at Kroger stores in Alabama, Georgia, Kentucky, Ohio, Tennessee and Texas but said the claims applied to “all stores and geographic areas.” 


U.S. Supreme Court Rules On Self-Representation -Competence to Stand Trial Is Not Enough

Friday, June 20th, 2008

By Robert Barnes Washington Post  Friday, June 20, 2008;
A mentally ill defendant found competent to stand trial does not have the right to act as his own attorney, the Supreme Court ruled yesterday.
The justices ruled 7 to 2 that it does not violate the Constitution for a judge to differentiate between when a mentally deficient defendant is found sane enough to assist in his defense and when he is competent enough to conduct his defense.
“A right of self-representation at trial will not affirm the dignity of a defendant who lacks the mental capacity to conduct his defense without the assistance of counsel,” Justice Stephen G. Breyer wrote.
“To the contrary, given that defendant’s uncertain mental state, the spectacle that could well result from his self-representation at trial is at least as likely to prove humiliating as ennobling.”
The decision was among five handed down yesterday involving age discrimination, disability benefits and union organizing [story, D1]. The court still must decide before the end of its term this month the constitutionality of the District of Columbia’s handgun ban, punitive damages in the Exxon Valdez disaster and whether someone who rapes a child is eligible for the death penalty.
The self-representation case decided yesterday involved Ahmad Edwards, a delusional and schizophrenic man who fired shots outside an Indianapolis department store after attempting to steal shoes. It was only after six years in custody that he was found competent to stand trial. A judge insisted Edwards be represented by counsel, and he was found guilty of attempted murder, among other charges.
The Indiana Supreme Court said he should get a new trial, because U.S. Supreme Court precedents recognized a Sixth Amendment right of defendants to represent themselves at trial.
Breyer said it was not necessary to overrule cases such as 1975′s Faretta v. California, which held that defendants have a right to self-representation even if it is likely to result in conviction. He said new studies have shown that instances of unfair trials are not widespread, and that giving judges the authority to insist upon the assistance of counsel will minimize them further.
At oral arguments in the case, there was one vociferous defender of a defendant’s right to proceed without counsel, Justice Antonin Scalia, who yesterday wrote a dissent.
“In my view, the Constitution does not permit a state to substitute its own perception of fairness for the defendant’s right to make his own case before the jury — a specific right long understood as essential to a fair trial,” Scalia wrote.
Referring to the majority opinion, he added: “The dignity at issue is the supreme human dignity of being master of one’s fate rather than a ward of the state — the dignity of individual choice.” He was joined by Justice Clarence Thomas.
The two usually are sticklers for examining the words of the Constitution and the Bill of Rights. In this case, Scalia acknowledged that the right of self-representation “is not explicitly set forth in the text of the Sixth Amendment.” But it was indicated in the amendment, Scalia explained, and has been recognized by the court.
The majority did not argue the point but said such a right can be limited by competency requirements. Breyer pointed to a brief by the American Psychiatric Association that said severe mental illness “can impair the defendant’s ability to play the significantly expanded role required for self-representation even if he can play the lesser role of represented defendant.”
The court agreed with Indiana and its supporters that a state has an interest in making sure trials are orderly and appear fair to the public, rather than descending into “farce.”
But the court did not accept a proposed standard that the defendant be denied the right to proceed on his own if he “cannot communicate coherently with the court or a jury.”
Because the majority did not set a standard, Scalia predicted the issue will return to the court.
The case is Indiana v. Edwards.


U.S. Supreme Court Upholds Kentucky Retirement Plan in Age Bias Case

Thursday, June 19th, 2008

By Debra Cassens Weiss    June 19, 2008
The U.S. Supreme Court has ruled in a 5-4 opinion that the use of age as a factor in Kentucky’s retirement plan does not violate the federal age bias law.
The plan treats younger workers in hazardous jobs who become disabled before retirement better than some older workers. The majority opinion (PDF posted by SCOTUSblog) by Justice Stephen G. Breyer said there was no evidence the disparity was motivated by age.
Younger workers under the plan who become disabled before they are eligible for normal retirement can retire at once. These workers receive imputed credit toward pension benefits for years of service that were never worked, but would have been needed to reach normal retirement. But those who become disabled after reaching the age of 55 do not get any additional years of imputed service since they are already eligible for retirement at that age.
A worker who sued over the plan had complained that two employees who become disabled at different ages could receive dramatically different benefits even though they had worked the same number of years for the state, the Associated Press reports.
The Cincinnati-based 6th U.S. Circuit Court of Appeals had ruled in an en banc opinion that the plan violated the Age Discrimination in Employment Act.
The Supreme Court dissenters argued the 6th Circuit was right. They included both liberals and conservatives: Justices Anthony M. Kennedy, Ruth Bader Ginsburg, Antonin Scalia and Samuel A. Alito Jr.
“By embracing the approach rejected by the en banc panel and all other courts of appeals that have addressed this issue, this court creates unevenness in administration, unpredictability in litigation, and uncertainty as to employee rights once thought well-settled,” said the dissent, written by Kennedy

U.S. Sup. Ct. Imposes Standard of Care on Insurers who Review Policyholder Claims

Thursday, June 19th, 2008

June 19, 2008

WASHINGTON (AP) — The Supreme Court said Thursday that courts should consider an insurance company’s potential conflict of interest when reviewing the denial of an employee’s health or disability benefits claim.

The court ruled 6-3 in the case of an Ohio woman who sued MetLife Inc. over a disability claim. She contended insurance companies have a financial incentive to deny claims and that conflict of interest should weigh heavily in employees’ favor when they challenge benefit claims in court.


A federal appeals court ordered Wanda Glenn’s benefits reinstated. The Supreme Court upheld that ruling.


Writing for the majority, Justice Stephen Breyer said federal law imposes a special standard of care on insurers requiring full and fair review of claim denials. Breyer noted that MetLife had emphasized a medical report that favored denial, de-emphasized other reports suggesting benefits should be granted and failed to provide MetLife’s vocational and medical experts with all relevant evidence.


Dissenting, Justice Antonin Scalia said the court is using the wrong standard in dealing with potential conflicts of interest. Scalia said there must be evidence that a conflict improperly motivated a denial of benefits. In the MetLife case, there was no such evidence, Scalia said. Justices Clarence Thomas and Anthony Kennedy also dissented.

MetLife administered a disability plan for Sears, where Glenn worked for 14 years. The insurance company paid benefits for two years but in 2002 said her condition had improved and refused to continue the benefit payments. MetLife saved $180,000 by denying Glenn disability benefits until retirement, her lawyers said in court filings.


The 6th U.S. Circuit Court of Appeals ordered Glenn’s benefits reinstated in September 2006, ruling that MetLife acted under a conflict of interest and made a decision that was not the product of a principled and deliberative reasoning process. MetLife argued that the standard used by the 6th Circuit would encourage participants with dubious claims to file suit, which in turn would raise the costs of benefit plans to both companies and employers.


The case is Metropolitan Life v. Glenn, 06-923.


Pundits are making predictions regarding Fen Phen Trial outcome

Thursday, June 19th, 2008

LawReader believes that trial outcome gossip is generally all wrong, nevertheless when the source is an experienced trial attorney who has closely watched a trial, then it begins to have some predictive value.  We all know that juries consistently surprise everyone with a verdict. 


So here is the prediction we have heard:


“Don’t be surprised if the Fen Phen jury in the Federal trial in Covington doesn’t render a defense verdict.”   The source goes on to evaluate the trial by saying, “the Government’s case was poorly presented, and the apparent bias of the Judge against the defendant’s may have a negative effect on the prosecution.”


Another source, opines that the attitude of the trial judge towards the defendants has changed substantially in the last weeks. (???)   We weren’t there, we don’t know, but we do know that you can go broke betting on what a jury will do.


Another predictor guesses that Mills will walk, Cunningham is a toss-up but Gallion will get maxed out.

One strange factoid:  A newspaper reported last week that Angela Ford had been appointed to represent the interests of her civil clients (the Fen Phen victims)…(???).

Also reported was a hearing before the bench where all attorneys, including Ford, were called before the bench and warned that if the report the judge had received that someone was following jurors was true that sanctions would be imposed.



Pundits are making predictions regarding Fen Phen Trial outcome

Thursday, June 19th, 2008


LawReader believes that gossip is generally all wrong, nevertheless when the source is an experienced trial attorney who has closely watched a trial, then it begins to have some predictive value.  We all know that juries consistently surprise everyone with a verdict. 


So here is the prediction we have heard:


“Don’t be surprised if the Fen Phen jury in the Federal trial in Covington doesn’t render a defense verdict.”   The source goes on to evaluate the trial by saying, “the Government’s case was poorly presented, and the apparent bias of the Judge against the defendant’s may have a negative effect on the prosecution.”


Another source, opines that the attitude of the trial judge towards the defendants has changed substantially in the last weeks. (???)   We weren’t there, we don’t know, but we do know that you can go broke betting on what a jury will do.


Another predictor guesses that Mills will walk, Cunningham is a toss-up but Gallion will get maxed out.

It has been noted that this jury generally has had a jolly demeanor and has laughed out loud at some comments by witnesses.  The old courtroom saw says “A happy jury is a defendant’s jury.”

Of course, the Main Street Media has already erected a three man gallows.

On strange development which we don’t understand is the newspaper report that Angela Ford (the Fen Phen victims current civil attorney) was appointed by the court to represent the interests of the victims at the trial. (???)   She was recently called before the bench, along with the Government attorneys and defense attorneys and warned that the judge had heard rumors that someone was following jurors….no one was specifically accused, but Judge Bertlesman threatened sanctions if such a report was true.

Minton to be sworn in as Chief Justice June 27th. – you are invited

Thursday, June 19th, 2008

The formal investiture of The Honorable John D. Minton, Jr. as Chief Justice of the Commonwealth of Kentucky will be held on Friday, the twenty-seventh of June,  2008 at eleven o’clock in the morning (EDT) in the 2nd floor Chambers of the Supreme Court State Capitol Building Frankfort, Kentucky

Julian Carroll discusses Pension Plan to be considered by Gen. Assembly

Wednesday, June 18th, 2008

As you know, Senate and House leadership have been meeting to reach a compromise on the state pension reform. On Tuesday, the Senate and House conferees reached an agreement.  If Governor Steve Beshear concurs with that agreement, there will be a special session the week of June 23.
 Ky. State Senator (and former Governor) Julian Carroll has issued the following message regarding the proposal for Pension Reform that will be considered by the Sepcial Session of the Ky.l General Assembly which convenes on Monday June 23, 2008:

To allow you to gain an immediate understanding of the proposed legislation, listed below are the areas of importance:
The agreement does not:

  • Contain defined contribution aspects.
  • Move the classified employees out of CERS or create a separate pension for city/county government employees.
  • Change the current inviolable contract language.

The agreement does:

  • For all public employees, including judges and legislators, hired after September 1, 2008, establish an additional 1 percent employee contribution for health insurance.
  • For nonhazardous new hires after September 1, 2008, require that the employee’s age plus years of service must equal 87 years at retirement, except that the employee must be at least 57 years of age to retire.  For hazardous new hires after September 1, 2008, an employee can retire at any age with 25 years of service.
  • For all current and future retirees including judges and legislators, establish a 1.5 percent cost-of-living adjustment, which can be increased by the General Assembly if prefunded.
  • For all existing employees and retirees, require a 3 month break in employment prior to returning to work in a non-hazardous position in public employment.  The returning employee will be allowed to draw their pension, but will not contribute to the retirement system or earn a second pension.  The employer will be required to pay the cost of the health insurance premium of the retiree and contribute to the retirement system.

The agreement establishes in statute contribution rates which will fully fund the actuarial required contribution by the year 2025.
The current savings of approximately $25 million to city and county governments, due to the decrease of their contribution level for one year, and the future savings to the retirement systems are well worth the cost of this five-day special session. 
The actuaries’ estimated future savings to the retirement systems vary, but numbers that are more concrete will be available once a final bill is drafted and reviewed by the actuaries.
I have attached a side by side comparison chart of the previous legislation and the current legislation agreed upon by the Senate and House leadership.
I will keep you up to date as we await confirmation of a special session from the Governor’s office. Please feel free to contact me with any questions.
Julian M. Carroll

U.S. Supreme Court expected to enter major Gun Rights & the exxon Punitive Damages decisions this week.

Tuesday, June 17th, 2008


June 17, 2008


Fifteen decisions are yet to come before the current U.S. Supreme Court term ends later this month.


The U.S. Court announced it will return to the bench on Thursday, so that’s the next opportunity for the justices to release either D.C. v. Heller (Second Amendment gun rights) or Exxon Shipping Co. v. Baker (Exxon Valdez punitive damages) or Kennedy v. Louisiana (death penalty for non-homicide rape.)


LawReader opines that the Court will clarify the 2nd. Amendment to outlaw the right of Congress, or the states to ban all gun ownership, but will for the first time clearly authorize “reasonable regulation”.  This theory of “reasonable regulation” will permit the prohibition of gun ownership by convicted felons, by mentally unstable persons, and some minors. Under such a theory the government could continue to regulate the possession of machine guns, rockets, bazookas and “military” weapons.


A standard of “reasonable regulation” will be justified as necessary for public safety

U.S. Supreme Court rules in bankruptcy tax exemption, immigration cases

Monday, June 16th, 2008

Mike Rosen-Molina    June 16, 2008

[JURIST] The US Supreme Court [official website; JURIST news archive] handed down two decisions Monday, including Florida Dept. of Revenue v. Piccadilly Cafeterias in which the Court ruled that a federal bankruptcy code provision [11 USC §1146(a) text] exempting certain court-confirmed transfers from state and local transfer taxes applies only after the plan has been approved by a bankruptcy court. The Court found:

The most natural reading of §1146(a)’s text, the provision’s
placement within the Code, and applicable substantive canons all lead to the same conclusion: Section 1146(a) affords a stamp-tax exemption only to transfers made pursuant to a Chapter 11 plan that has been confirmed. Because Piccadilly transferred its assets before its Chapter 11 plan was confirmed by the Bankruptcy Court, it may not rely on §1146(a) to avoid Florida’s stamp taxes.

The ruling overturns an April 2007 Eleventh Circuit Court of Appeals decision [opinion, PDF] and also helps resolve a split among the Eleventh, Third, and Fourth Circuits’ interpretations. Read the Court’s opinion per Justice Thomas, and a dissent [texts] filed by Justice Breyer and joined by Justice Stevens. AP has more.

The Court also ruled in Dada v. Mukasey in which it found that an illegal alien who had agreed to leave the US could withdraw from that agreement to make a case against deportation. Dada, a Nigerian living illegally in the US, had agreed to leave the country willingly, but later sought to stay in the US and reopen his case. The Fifth Circuit Court of Appeals denied [ruling, PDF] Dada’s petition, finding that the Board of Immigration Appeals had reasonably denied his request. The Court reversed and remanded that decision, holding:

[T]o safeguard the right to pursue a motion to reopen for voluntary departure recipients, the alien must be permitted to withdraw, unilaterally, a voluntary departure request before expiration of the departure period, without regard to the underlying merits of the motion to reopen. As a result, the alien has the option either to abide by the terms, and receive the agreed-upon benefits, of voluntary departure; or, alternatively, to forgo those benefits and remain in the United States to pursue an administrative motion.

Read the Court’s opinion per Justice Kennedy, and a dissent [texts] by Justice Scalia joined by Chief Justice Roberts and Justice Thomas. Read a separate dissent [text] filed by Justice Alito.

Former Alabama Governor prosecuted by Justice Dept. seeks dismissal of conviction, Karl Rove asked to testify by Congress but refuses.

Monday, June 16th, 2008

  Note: time MAGAZINE, has published a story claiming that rove pushed the justice dept. to prosecute sieglemen, and to not prosecute alabama republicans for similar offense.  the trial judge has ordered siegleman ‘s release



A Case of Politics – New York Times Editorial


June 16, 2008


Don Siegelman, the former Alabama governor, is asking a federal appeals court to throw out his conviction on dubious corruption charges. His appeal has some surprising backers: a bipartisan group of 54 former state attorneys general has submitted a brief on his behalf. Congress is also investigating charges that Mr. Siegelman was politically targeted.


Mr. Siegelman was the Democrats’ strongest candidate to retake the Alabama governorship, and Congress has uncovered evidence that the United States attorney’s office in Montgomery — with possible White House input — may have decided to prosecute him to undermine his campaign. The former presidential adviser Karl Rove, who has been accused of pushing to have Mr. Siegelman indicted, has been subpoenaed by both the House and Senate, but has refused to testify.


While Congress examines those allegations, Mr. Siegelman is asking the United States Court of Appeals for the 11th Circuit, in Atlanta, to reverse his case on the law. Mr. Siegelman was accused of reappointing Richard Scrushy, then the chief executive of HealthSouth, to a health care board in exchange for a contribution to a referendum campaign for a state lottery.


Mr. Siegelman was convicted of bribery and related crimes and sentenced to more than seven years, and served nine months before being freed on appeal.

Laws against bribery must be used carefully. It is not a crime for an elected official to appoint a campaign contributor to a position. If it were, many ambassadors and judges — and the presidents and governors who appointed them — would be in jail. And partisan prosecutors would have far too much power to punish elected officials they did not like.

For an appointment to be illegal, there needs to be an express quid pro quo — something the prosecutors did not prove in Mr. Siegelman’s case.


Even the highly partisan Bush Justice Department appears to be losing confidence in its case. It originally appealed Mr. Siegelman’s sentence, hoping to add more than 20 years. It recently withdrew the appeal without explanation.


Congress should compel Mr. Rove to testify. And it should keep investigating this prosecution and what role crass politics may have played. While it does, the 11th Circuit should cast a skeptical eye on this case, based on the law and the facts.




What the Supreme Court’s Habeas Decision Means

Friday, June 13th, 2008

By Andy Worthington


Those who cherish the United States’ historical adherence to the rule of law — myself included — were delighted to hear that the U.S. Supreme Court ruled on Thursday, in the case of Boumediene v. Bush, that the prisoners at Guantánamo “have the constitutional right to habeas corpus,” enabling them to challenge the basis of their detention, under the terms of the 800-year old “Great Writ” of habeas corpus, which prohibits the suspension of prisoners’ rights to challenge the basis of their detention except in “cases of rebellion or invasion.”

That this decision was required at all was remarkable, as it was almost four years ago, on 29 June 2004, that the Supreme Court ruled, in the case of Rasul v. Bush, that Guantánamo — chosen as a base for the prison because it was presumed to be beyond the reach of the US courts — was “in every practical respect a United States territory,” and that the prisoners therefore had habeas corpus rights, enabling the prisoners to challenge the basis of their detention.

The difference between then and now is that, in Rasul v.Bush, the Supreme Court ruled only that the prisoners had statutory habeas rights, and, following the ruling, the executive responded in two ways that completely undermined the Supreme Court’s verdict.

The first of these — as lawyers began applying to visit prisoners to establish habeas cases — was the establishment of Combatant Status Review Tribunals (CSRTs) at Guantánamo, which were set up, ostensibly, to review the prisoners’ designation as “enemy combatants,” who could be held without charge or trial. In reality, they were a lamentable replacement for a valid judicial challenge. Although the prisoners were allowed to present their own version of the events that led up to their capture, they were not allowed legal representation, and were subjected to secret evidence that they were unable to see or challenge.

Last June, Lt. Col. Stephen Abraham, a veteran of U.S. intelligence, who worked on the CSRTs, delivered a damning verdict on their legitimacy, condemning them as the administrative equivalent of show trials, reliant upon generalized and often “generic” evidence, and designed to rubber-stamp the prisoners’ prior designation as “enemy combatants.” Filed as an affidavit in Al Odah v. United States, one of the cases consolidated with Boumediene, Lt. Col. Abraham’s testimony was regarded, by legal experts, as the trigger that spurred the Supreme Court, which had rejected an appeal on behalf of the prisoners in April 2007, to reverse its decision and to agree to hear the cases. The reversal was so rare that it had last taken place 60 years before.

The executive’s second response to Rasul was to remove the prisoners’ statutory rights, persuading the third strand of the American power base — the politicians in Congress — to pass two hideously flawed pieces of legislation: the Detainee Treatment Act of 2005, and the Military Commissions Act of 2006.

The Detainee Treatment Act (DTA), which originated as an anti-torture bill conceived by Senator John McCain, was hijacked by the executive, who managed to get an amendment passed that removed the prisoners’ habeas rights, although the legislation was so shoddy that it was not entirely clear whether the prisoners had been stripped of their rights entirely, or whether pending cases would still be considered. What was clear, however, was that the DTA limited any review of the prisoners’ cases to the DC Circuit Court (rather than the Supreme Court), preventing any independent fact-finding to challenge the substance of the administration’s allegations, and mandating the judges to rule only on whether or not the CSRTs had followed their own rules, and whether or not those rules were valid.

In the fall of 2006, following a second momentous decision in the Supreme Court, in Hamdan v. Rumsfeld, in which the justices ruled that the proposed trials by Military Commission for those held at Guantánamo (which also relied on the use of secret evidence) were illegal under domestic and international law, the executive persuaded Congress to pass the Military Commissions Act (MCA), which reinstated the Military Commissions and also removed any lingering doubts about the prisoners’ habeas rights, stating, explicitly, “No court, justice or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus filed by or on behalf of an alien detained by the United States who has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination.” In a further attempt to stifle dissent, the MCA defined an “enemy combatant” as someone who has either engaged in or supported hostilities against the US, or “has been determined to be an unlawful enemy combatant by a Combatant Status Review Tribunal or another competent tribunal established under the authority of the President or the secretary of defense.”

The wheels of justice revolve so slowly that it has taken over a year and a half since the passing of the MCA for the Supreme Court to stamp its authority on the conceits of both the executive and Congress, and cynics can argue that all of this could have been avoided if the Supreme Court had insisted on the prisoners’ Constitutional habeas rights in June 2004. Nevertheless, Thursday’s ruling — however belatedly — comprehensively demolishes the habeas-stripping provisions of both the DTA and the MCA.

In no uncertain terms, Justice Anthony Kennedy, delivering the Court’s majority opinion, ruled that the “procedures for review of the detainees’ status” in the DTA “are not an adequate and effective substitute for habeas corpus,” and that therefore the habeas-stripping component of the MCA “operates as an unconstitutional suspension of the writ.” These judgments, which should soundly embarrass the nations’ politicians, could hardly be more clear, and although it is uncertain how the administration will respond in its dying days, it seems unlikely that the executive will be able to prevent a slew of habeas cases, which have, effectively, been held in a kind of legal gridlock for years, from progressing to court.

The only other obvious recourse, which will also help the prisoners to escape from the intolerable legal limbo in which they have been held for up to six and a half years, is that the administration will suddenly develop a previously undreamt-of diplomatic dexterity, and will make arrangements for the release of a large number of the 273 remaining prisoners without having to endure the acute embarrassment of justifying, in a proper courtroom, the hearsay, the innuendo, the generic information masquerading as evidence, and the fruits of torture, coercion and bribery that it has used to imprison these men for so many years.

Since 9/11, sadly, justice in the U.S. has moved so slowly that on occasion it has appeared to be dead, but Thursday’s verdict is a resounding triumph for the importance of the law as a check on unfettered executive power and the caprice of politicians. As Justice Kennedy stated in his opinion, “The laws and Constitution are designed to survive, and remain in force, in extraordinary times.” He added, “To hold that the political branches may switch the Constitution on or off at will would lead to a regime in which they, not this court, say ‘what the law is,’” a quote from an 1803 ruling, in which the Supreme Court explained its right to review acts of Congress, which, of course, reinforces the supremacy of the separation of powers that lies at the heart of the United States Constitution

Diet-drug lawyer defends compensation – Attorneys fought for clients

Friday, June 13th, 2008



By Andrew Wolfson


COVINGTON, Ky. — Confident and composed on the witness stand, attorney William Gallion testified yesterday that he and his co-defendants in the fen-phen fraud trial “got paid a lot of money” for their work on a settlement with the diet drug’s maker, “but I am not embarrassed about it.”


“We hung our necks out,” he said. “We really fought hard for our clients.”

The first and so far only defendant to testify, Gallion told a federal court jury that he and co-counsel Shirley Cunningham Jr. and Melbourne Mills Jr. would have had to file for bankruptcy had they not won the $200 million settlement in 2001.


In his first three hours under cross-examination by the prosecution yesterday, Gallion admitted no wrongdoing and never lost his temper. The session produced few fireworks, although Gallion made some potentially damaging admissions under questioning by Assistant U.S. Attorney E.J. Walbourn.


For example, Gallion, who previously testified he relied on class-action expert Stan Chesley’s advice in negotiating the settlement, acknowledged that he and his co-defendants signed pleadings attesting that they were qualified to handle such complex proceedings.


Blame put on Chesley


Lawyers for all three have blamed mistakes in the case on Chesley.


The three defendants, already suspended from the bar, could be sentenced to up to 20 years in prison if they are convicted in the trial, now in its fifth week. Each is charged with one count of conspiracy to commit wire fraud for allegedly taking $65 million more than they were entitled to under contracts with their 431 clients.


The cross-examination of Gallion is expected to resume today, and Chesley, who has been promised immunity from prosecution, could be called as a rebuttal witness.

The trial is expected to end next week.


Yesterday, Walbourn tried to show that Gallion lied to his then-law firm partner, Michael Baker, when he told him in May 2001 that the attorney fees in the case were $50 million — rather than the $98 million approved by a state court judge.


But Gallion said he didn’t remember telling Baker a specific amount.

Baker later sued Gallion and recovered an out-of-court settlement, but U.S. Senior District Judge William O. Bertelsman refused to let the government mention that suit or to allow Baker to testify.


Also yesterday, Gallion offered little explanation for a memo he wrote in March 2001 that the prosecution has characterized as a smoking gun. In the one-page document, Gallion told an associate “we do not want to tell any clients that we are going to try to settle a bunch of cases for a lump sum and then divide up the money. That is only inviting the trouble.”


Gallion said only that the government presented the memo out of context.

Expert witnesses for both sides testified earlier that the lawyers violated ethical rules by divvying up the settlement themselves instead of hiring a third party to do that.

Gallion also acknowledged yesterday that he and the other defendants increased settlements for clients who complained about their amount.


On Wednesday he testified on direct examination that those amounts were raised only if clients showed their injuries warranted more.


“We would rather err on the side of giving folks more money, that was our approach,” Gallion said.


Risk questioned


Walbourn also tried to show that Gallion exaggerated the risk faced by the lawyers that they might have to pay claims to as many as 60,000 Kentuckians, in addition to the 431 clients covered by the $200 million settlement with fen-phen’s manufacturer in 2001. The lawyers have cited that potential exposure as the reason they held back tens of millions of dollars from those clients.


Gallion had claimed that the class of 60,000 people could have filed new suits against a doctor who prescribed them that medication, and that he and his co-defendants would have been on the hook to pay them.


But questioned by Walbourn, Gallion admitted that none of those people were ever told they had a case or were members of a class action.


“How were they to know they could bring a claim?” Walbourn asked Gallion.

“Like anybody else who realized they were a victim of malpractice,” he answered.

Earlier yesterday, questioned by his own co-counsel, O. Hale Almand, Gallion said that:

It was Chesley who suggested putting $20 million in “excess funds” into a charitable trust. Gallion said Chesley told the judge who approved that, Joseph “Jay” Bamberger, that “we have an opportunity to do something wonderful for the citizens of Kentucky.”

The defendant lawyers approached Bamberger about making a second round of payments to clients in 2002 not because the Kentucky Bar Association had launched an investigation of the case — as the government claims — but instead because a separate national fen-phen settlement had been finalized, eliminating a risk that the lawyers would have to pay additional claims.


He never told Mills’ legal assistant, Rebecca Phipps, to destroy documents from the case. “That never occurred,” he said.


“I hate to criticize anyone, but Rebecca Phipps believed she was a lawyer. She always wanted to step over the line and act like she had the authority and knowledge to make real decisions.”


Gallion also said that he and Cunningham deposited tens of millions of dollars in settlement funds in their personal investment accounts for “safekeeping” and because the settlement made the lawyers responsible for paying claims.


The prosecution’s ethics expert testified earlier that lawyer ethics rules require client funds to be held in escrow accounts.

Fen Phen lawyer denies he ordered destruction of documents

Thursday, June 12th, 2008

      By Beth Musgrave Lexington Herald Leader


COVINGTON — June 12, 2008


A lawyer accused of taking millions of dollars that should have gone to his former clients in a class-action settlement testified Thursday that an associate was mistaken when she testified that he instructed her to destroy documents related to the settlement. 


William Gallion testified in federal court Thursday that Rebecca Phipps, a key witness for the prosecution, was wrong when she testified earlier in the trial — now in its fifth week — that Gallion had told her to destroy documents related to a $200 settlement on behalf of 440 clients who sued diet-drug manufacturer American Home Products alleging that fen-phen damaged their hearts and lungs.


Gallion, Shirley Cunningham Jr. and Melbourne Mills Jr. are accused of taking $65 million that should have gone to the 440 clients. Each of the suspended lawyers has been charged with one count of conspiracy to commit wire fraud. Gallion is the first to testify in his own defense.


Phipps worked for Mills at the time the Boone Circuit Court case was settled and has said that Gallion instructed her to destroy records related to the case.


“It makes no sense,” Gallion said of Phipps’ testimony. Phipps had all the files related to the fen-phen settlement at the time. “What would I have possibly told her to destroy?”

Phipps, Gallion said, was one of the hardest-working people he had ever met but she frequently crossed the line because she thought she knew more than many of the attorneys on the case, Gallion said.


Prosecutors began cross-examining Gallion on Thursday morning.


Prosecutors allege that Gallion, Cunningham and Mills conspired to defraud their clients by not telling the clients how much the total settlement was for, threatening many with jail or fines if they talked about their settlement and by not telling the judge on the original Boone Circuit Court case that they had contracts with their clients that limited their fees to roughly 30 percent of the settlement.


William Gallion denies he order destruction of Fen Phen documents

Thursday, June 12th, 2008

By Beth Musgrave Lexington Herald Leader


COVINGTON — June 12, 2008


A lawyer accused of taking millions of dollars that should have gone to his former clients in a class-action settlement testified Thursday that an associate was mistaken when she testified that he instructed her to destroy documents related to the settlement. 


William Gallion testified in federal court Thursday that Rebecca Phipps, a key witness for the prosecution, was wrong when she testified earlier in the trial — now in its fifth week — that Gallion had told her to destroy documents related to a $200 settlement on behalf of 440 clients who sued diet-drug manufacturer American Home Products alleging that fen-phen damaged their hearts and lungs.


Gallion, Shirley Cunningham Jr. and Melbourne Mills Jr. are accused of taking $65 million that should have gone to the 440 clients. Each of the suspended lawyers has been charged with one count of conspiracy to commit wire fraud. Gallion is the first to testify in his own defense.


Phipps worked for Mills at the time the Boone Circuit Court case was settled and has said that Gallion instructed her to destroy records related to the case.


“It makes no sense,” Gallion said of Phipps’ testimony. Phipps had all the files related to the fen-phen settlement at the time. “What would I have possibly told her to destroy?”

Phipps, Gallion said, was one of the hardest-working people he had ever met but she frequently crossed the line because she thought she knew more than many of the attorneys on the case, Gallion said.


Prosecutors began cross-examining Gallion on Thursday morning.


Prosecutors allege that Gallion, Cunningham and Mills conspired to defraud their clients by not telling the clients how much the total settlement was for, threatening many with jail or fines if they talked about their settlement and by not telling the judge on the original Boone Circuit Court case that they had contracts with their clients that limited their fees to roughly 30 percent of the settlement.