Archive for December, 2008

Some Judges Delay Swearing-In Of New Citizens, Report Says

Thursday, December 18th, 2008


By Spencer S. Hsu  Washington Post  Thursday, December 18, 2008

Federal judges in some parts of the United States have delayed the swearing-in of new citizens, keeping millions of dollars in fees that would otherwise go to immigration officials if they were allowed to administer the oaths instead, according to a new government report and immigration officials.
In one of the nation’s busiest courts, a judge’s delay caused nearly 2,000 people to not receive the oath in time to register for November’s general election, USCIS ombudsman Michael Dougherty said in a 13-page report released yesterday.
The finding adds a new twist to long-standing complaints that applicants for citizenship face long waits, poor service and different treatment depending on which immigration office handles their paperwork. While the USCIS has eased huge backlogs created in summer 2007, with steps such as speeding up FBI security background checks, the new bottleneck points to a turf battle with U.S. district courts.
Although “federal courts are very responsive” generally to USCIS requests for naturalization ceremonies, Dougherty reported, some “court officials denied USCIS the opportunity to naturalize persons in time to vote in the recent general elections” and “otherwise engaged in conduct inconsistent with the letter or the spirit” of the nation’s immigration laws.
In the most dramatic case, immigration officials asked a U.S. district judge in the summer to schedule more ceremonies or allow the agency to administer the oath itself to new citizens, but the request was denied, the report said.
A USCIS district director was told that the court had “done more than its share” in swearing in new citizens, the report said.
Dougherty did not name the judge, saying only that the case arose in New York, Los Angeles, Chicago or Detroit, four of the 41 U.S. court districts where courts retain exclusive jurisdiction over naturalization cases.
“Courts that choose to assert exclusive authority to naturalize new citizens should also embrace a customer service ethic that recognizes the singular importance of oath ceremonies,” Dougherty said in a news release issued by his office’s parent agency, the Department of Homeland Security. He said USCIS and the courts should set clear rules to speed up the process.
Courts have 45 days after USCIS approves a citizenship application to administer an oath of allegiance, and the agency reimburses them $14.09, out of fees paid by the applicant, for each oath they perform. But the agency can often administer the oaths more quickly and cheaply, saving the money for itself.
Still, USCIS officials “are very reliant on the cooperation of court officials” to meet naturalization targets, and they complain about “a lack of parity” in power, the report said.
Prakash Khatri, who was Dougherty’s predecessor until February, said the judiciary “has held USCIS hostage for a court fee that these jurisdictions are not giving up,” Khatri said. People wait for months after their naturalization applications are approved, he said, “only to find that the delay is a direct result of judges not scheduling naturalization ceremonies.”
U.S. District Judge John R. Tunheim of Minneapolis, who chairs a federal judiciary committee that oversees court administration, called the report’s conclusion “ludicrous” and said its examples are unsubstantiated and in some cases “little more than rumor and innuendo.”
“Certainly the courts will work very closely with USCIS, just as we have for years,” Tunheim said. He added that courts send immigration fees to a judiciary general-fund account in Washington: “The idea that we’re doing it for money seems to me ludicrous. None of us can pay much attention to all these transfers that go back and forth.”
USCIS has made progress in clearing huge application backlogs. Since April, the agency and the FBI have cut the backlog of immigration cases pending security background checks from 275,000 to 60,000, with a goal by June of handling all name checks against FBI records within 90 days.
After the number of naturalization applications nearly doubled in 2007, to 1.4 million, driving up average processing times to more than 13 months, USCIS reported in the fall that the average time was back to 8.8 months.
By October, about 475,000 applications were pending more than nine months, 192,000 more than 18 months and 118,000 more than two years, Dougherty reported

New Rules say Government Contractors Must Disclose ‘Credible Evidence’ Of Fraud, Abuse – Failure to comply could result in disbarment for attorneys

Thursday, December 18th, 2008


Dec. l8, 2008    Government, Inc. by Robert Harrow, Jr.


Starting today, all federal contractors on deals lasting four months or more and worth $5 million or more (including those outside the U.S. and those providing commercial items) must blow the whistle on criminal violations or overcharging.

Such contractors also will have to “establish and maintain specific internal controls to detect and prevent improper conduct,” according to the rules spelled out in the Federal Register.


The possible consequences of not blowing the whistle? Debarment and suspensions.

Yes, it’s quite a change. Even the government acknowledges it represents a a “major depature” from the past. Naturally, Government Inc., in contemplating the importance of getting the most out of taxpayer money, applauds tight oversight and clean contracting.

The contracting abuses in recent years are well documented. No one knows the true extent of fraud and abuse in the $450 billion procurement universe these days. Consider some of the Justice Department’s recent False Claims cases. This rule could give prosecutors another sharp edge to apply to their cases.



It’s important to examine the impact here. Will the government be able to enforce this sweeping new mandate in a fair and equitable way? Does it have the resources? Good policy can’t just be a paper thing, as you all well know.


Fred Levy and Michael Scheininger, procurement and white collar fraud specialists at the McKenna, Long & Aldridge law firm, reached out with a few thoughts that Government Inc. found interesting. The bottom line: Contractors are worried.


“Contractors are concerned about the difficulty and expense that will be entailed in determining whether events are reportable as fraud–particularly civil fraud–which as a legal matter is an elastic concept, and the consequences of the latter being second guessed,” they said in a email note. “Contractors also worry that reported events will introduce prolonged uncertainty about liability as IGs and DoJ take months and years to resolve matters that are reported.”


On the other, the government defends its new push vigorously, saying contractors have done a dismal job of self-regulation. From the Federal Register:


“There is no doubt that mandatory disclosure is a ”sea change” and ”major departure” from voluntary disclosure, but DoJ and the OIGs point out that the policy of voluntary disclosure has been largely ignored by contractors for the past 10 years.”


Franklin Circuit Judge Phillip J. Shepherd Denies Early-release Injunction

Thursday, December 18th, 2008


Attorney General Jack Conway’s office suffered a setback in his attempt to end the Justice Cabinet’s attempt to cut prison populations by liberalizing early release procedures.  This issue is one of the first battles between “conservatives” who seek to increase prison populations and “moderates” who believe Kentucky must reduce its half billion dollar a year expenditures for its 13 prison facilities.  Amendments to the criminal code in the last 25 years have filled our prisons due to mandatory sentencing policies, and get tough on drug users policies.


The state can continue a program under which more than 1,800 convicted felons have been released from prison earlier than under previous rules, Judge Shepherd ruled December 17th.


The request for a temporary injunction sought to shut down the program.


Prosecutors have argued that releasing the inmates puts the public at risk.

This year, lawmakers put language in the state budget to change how the Department of Corrections calculates when people get out of prison. The goal was to cut spending on prison costs.


In challenging the policy, Assistant Attorney General Tad Thomas presented evidence that several men were charged with crimes — including bank robbery, armed robbery and weapons possession — after release from prison under the rules.


But Shepherd said the new policy was not the cause of those crimes.


Shepherd noted that statistics show about 30 percent of people released from prison commit new crimes. There is no evidence the people released under the new policy are offending again at a higher rate, he said.


Mark Hebert suggests potential nominees for U.S. Attorney positions

Wednesday, December 17th, 2008

Mark Hebert reports that the following attorneys names are being bandied about as possible nominees for appointment as U.S. Attorney in an Obama Administration.
Benham Sims: Former District Judge.
David Kaplan: Chief of Staff for House Speaker Jody Richards.

Pat Boldin: Federal public defender.
Steve Reed: Former U.S.
Attorney for Western District.                                                  

David Hale. Respected Louisville lawyer

LawReader invites other nominees…e-mail us at:


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Muslim woman jailed for refusing to remove head scarf in Georgia courthouse

Wednesday, December 17th, 2008

ATLANTA (Dec. 17) – A Muslim woman was arrested for refusing to take off her head scarf at a courthouse security checkpoint said Wednesday that she felt her human and civil rights were violated.

A Georgia judge ordered Lisa Valentine, to serve 10 days in jail for refusing to take her head scarf off in court Tuesday. The Muslim, who had violated a policy that prohibits any headgear, was released Wednesday after an advocacy group called for a federal probe into the matter.

How would you rule?   

U.S. Supreme Court considers ban on depictions of animal cruelty

Wednesday, December 17th, 2008

WASHINGTON, Dec. 17  – The U.S. Supreme Court will have the last word on a federal law that bans the sale of films or photographs that show animals being tortured.

A federal appeals court ruled that the law was unconstitutional because it limited freedom of speech. The decision freed the only person convicted under the law, Robert Stevens, a Virginia man who sold videos of pit bulls killing pigs.


Stevens was tried in 2005 by a jury in Pittsburgh that took only 45 minutes to find him guilty.


The Justice Department asked the highest court to review the case, the Pittsburgh Post-Gazette reported Wednesday. The Solicitor General, who represents the government before the Supreme Court, filed a petition Monday.


In the petition, government lawyers say that there is a “moral interest in suppressing depictions that have no social value and that are created solely to depict suffering by animals.”


Experts say the high court is more likely to hear this case because the petition comes from the Justice Department and the constitutionality of a federal law is at stake. If the court decides not to hear the case, the appeals court ruling would stand

Gov. Beshear Announces E-Warrant Program a Success

Wednesday, December 17th, 2008

 Dec. 17, 2008



FRANKFORT, Ky. – An electronic, interlinked system that went online this year has revolutionized the way Kentucky law enforcement and criminal justice professionals access and serve warrants, summonses and other related documents, Gov. Steve Beshear announced today.

Nearly a year after it was first implemented, more than 62 percent of the new warrants entered into the E-Warrants system have been served, compared with less than 10 percent served under the old system.

The system, which first went live in Jefferson County in January 2008, has since been launched in Campbell, Scott, Bourbon and Woodford counties.  The program is expected to launch in Fayette County in early 2009, and be active statewide within the next 24 months.

Kentucky is one of only a handful of states that utilize an electronic system to manage certain types of warrants.

Prior to use of this system, as many as 300,000 warrants were outstanding on any given date in Kentucky, primarily because the warrants were paper-based and reside in each county with no statewide mechanism for access.

“The E-Warrant system is modernizing policing in the commonwealth,” Gov. Beshear said.  “Kentucky continues to be a leader in utilizing technology to greatly enhance efficiency and improve public safety.  Not only will officers have immediate access to outstanding warrants, but pertinent data is collected and stored in a searchable format, providing an invaluable tool for law enforcement.”

In Jefferson County, for example where more than 72 percent of new warrants have been served – a warrant was served on a suspect just 17 hours after a criminal complaint was issued for murder, 1st degree robbery and evidence tampering.  Law enforcement officers ran a search on the E-Warrants system and found the defendant listed as a witness in a separate criminal complaint, which provided sufficient information to locate and apprehend the defendant.

Eventually, all old warrants will be entered in the system, dramatically helping to erase the backlog of unserved warrants. Additionally, by mid-2009, all new emergency protective orders and domestic violence orders will be entered into the E-Warrants system.  The system also helps avoid situations where a warrant is served on an individual multiple times, saving valuable time and resources.

“The E-Warrants system provides all Kentucky law enforcement officers with instant access to critical local warrant information, beyond what they can obtain through the National Crime Information Center,” Kentucky State Police Commissioner Rodney Brewer said.  “This greatly enhances officer safety and will result in more warrants served and more criminals off our streets.”

“We’re well on our way in resolving Kentucky’s long-term need for improving access to warrant information as well as sharing such data across agency boundaries,” Thomas L. Preston, executive director, Kentucky Office of Homeland Security (KOHS), said.  “This program will be a national model for improving response to crime as well as the threat from terrorism.”

The E-Warrants system also enables judges to receive, review and take action on warrants via handheld electronic devices such as a personal digital assistant or cell phone.

“The success of the Kentucky E-Warrants system is an example of technology at its best, playing an important role in protecting the public and delivering swift and efficient justice,” Chief Justice of Kentucky John D. Minton Jr. said. “As the E-Warrants system is implemented across the commonwealth, all judges will have the ability to electronically sign warrants and issue criminal complaints anywhere there is Internet access. This technology will allow the Court of Justice to better serve the citizens of Kentucky and save valuable time and resources.”

The system was originally funded with a $4.5 million General Fund appropriation, and implemented through KOHS. Extending the program statewide is expected to cost about $900,000, mostly for training, travel and system enhancements.  Once fully operational, the system will be owned by KSP and maintained as part of the agency’s ongoing technology maintenance contract.

The E-warrant system is the second technology-based enhancement aimed at improving public safety to take effect under Gov. Beshear.  In September 2008, Gov. Beshear announcement Public Safety First, an initiative that elevates and unifies several key public safety technology programs under a single umbrella of protection to be overseen by the Justice and Public Safety Cabinet


KBA limits power of Bar President

Wednesday, December 17th, 2008


The president of the Kentucky Bar Association and the group’s ethics committee have settled an investigation over her removal of committee members in a deal that will put limits on her power.


The association’s Board of Governors found that Barbara Bonar, of Covington, inappropriately removed several members of the ethics committee in August before their terms expired. Several have returned to the board, the association said.


Under terms of the deal, Bonar needs approval of the Board of Governors or the association’s executive committee for any future appointments or removal of committee members.


Bonar declined comment yesterday.


Buzz English, a Bowling Green attorney who is president-elect of the association, said the board did not reach a conclusion about why the ethics committee members were removed, only that it was done improperly.


“These people should not have been removed,” English said.


Bonar is still subject to a KBA investigation concerning actions taken in a class action case.  The action taken by the Board this week does not affect or conclude that investigation.

U.S. Rep. John Yarmuth says Obama appointments of U.S. Attorneys and U.S. Marshals may not be discussed until March

Saturday, December 13th, 2008


Dec. 14, 2008


U.S. Rep. John Yarmuth (D-Louisville) said discussions with the transition team of President-elect Barack Obama regarding federal appointments within the states have been limited thus far, but they may kick up once Obama has been inaugurated.


“We have not had any conversations yet with the transition team about that except to be told that they are probably looking at maybe March before they start focusing on U.S. Attorneys and Marshals and so forth,” Yarmuth told


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Saturday, December 13th, 2008

Secretary Michael Brown has submitted the 28 page report to Gov. Steve Beshear with reccomendations for reform of the Kentucky Criminal Justice system.

This important report discusses numerous issues that should be adopted and also discusses issues which should be avoided. 

Click: CRIMINAL JUSTICE REFORM Report to the Governor – presented by: Secretary J. Michael Brown   Secretary Justice & Public Safety Cabinet 

Ace Criminal Defense Attorney Brenda Popplewell does it again with win based on hardwork and application of forensic science.

Friday, December 12th, 2008

LawReader watches for outstanding lawyers in all fields.  One of the stars in criminal law practice is defense lawyer Brenda Popplwell from Somerset in Pulaski, County.  She recently won an appeal before the 6th. Circuit.  Today we report on another criminal trial victory.
John Edward Phillips was found not guilty of two counts of First Degree Assault on Thursday, ending the three day trial in McCreary Circuit Court. Special Judge Gary Payne presided after Circuit Judge Jerry Winchester recused himself from the case.


Mr. Phillips was charged with shooting Richard and Greg Dobbs at the Dobbs’ home on Skullbone Tower Road in October of 2004. Mr. Phillips was convicted of the charges in 2005, but the Kentucky Court of Appeals overturned the conviction and held that the jury should have been instructed on self-defense. The case was scheduled to go to trial twice before, but a mistrial was declared both times with Judge Winchester removing himself from the case at the last mistrial.


According to Ms. Popplewell, the case turned on the forensic evidence. “The glass on the steps demonstrated that Richard Dobbs shot first, shooting Mr. Phillips with a 357 Magnum, through a glass storm door. The impact of the gunshot caused the glass to shatter, and move forward with the force of the bullet, scattering shards of glass all the way down the front steps and yard of the home.” “The laws of physics apply even on Skullbone Tower Road,” she told the jury.


The Jury deliberated for 45 minutes and returned with a not guilty verdict on all charges. Legal Assistant Saundra Taylor was instrumental in Mr. Phillips’ successful defense, according to Ms. Popplewell.


 “Ms. Taylor’s investigation equaled that of investigations seen on CSI” referencing the popular television program. Ms. Popplewell noted that Attorney Carolyn Clark-Cox, Trial Attorney for Mr. Phillips’ first trial, did a “superb” job preserving the record during a difficult trial, making it possible for Mr. Phillips to have an opportunity to pursue an appeal. Ms. Popplewell said Julia Pearson, an Appellate Attorney wrote a “brilliant” appellate brief which resulted in a new trial for Mr. Phillips.



What do you give to your wife for Christmas? Be careful to avoid Marital Christmas Gift Entrapment.

Friday, December 12th, 2008

Have you had the experience of asking your wife what she wants for Christmas and she is evasive or suggests only a token gift?  Be very careful, this is a clear case of entrapment in the first degree.
I recently had a discussion about this issue with my wise sister Yuvonne who lives in Denver.  She offered sage advice that I will not forget, and I would like to pass it along to those who wish to stay out of the dog house.
When a woman is evasive in her response to your question about a suggested gift, or if she suggests something like a vacuum cleaner or some steak knives, the trap is being set.
Here is what my sister says a woman means when she is evasive in response to your inquiry:
“You should give her a gift that expresses her true worth to you.”
 Translation: It had better be something of substantial value.  Jewelry is nice. Remember that household appliances are never appropriate since that means you just view her as your maid.   Furthermore, everytime this household appliance or “practical” gift is used in the future, it will revive her anger and will once again put you in the dog house.
This is a dangerous season for marital relationships, be careful out there!!!

US Supreme Court: Federal law DOES NOT trump state laws on medical marijuana

Friday, December 12th, 2008

December 11th, 2008 · 

by Steve Kubby, Director, The American Medical Marijuana Association 

Last Monday, the US Supreme Court Monday quietly, but overwhelmingly destroyed the allegations by state law enforcement that, “Federal law trumps state laws on medical marijuana.” 

The Supremes declined to review a lower court decision that ordered Garden Grove, California, police to return marijuana seized from a medical marijuana patient. In November 2007, the California Fourth District Court of Appeal had ordered the marijuana returned, finding that “it is not the job of local police to enforce federal drug laws.” 

This was the fourth shot the Supremes had at bringing down Prop. 215 and, instead, the high court handed us a silent, but deadly victory. It may be a win by default, but it is most certainly a huge win, perhaps our greatest win to date. 

Felix Kha, was pulled over by Garden Grove police in 2005 and cited for marijuana possession despite showing officers his medical marijuana documentation. The case was subsequently dismissed, and the Orange County Superior Court ordered the police to return Kha’s wrongfully seized quarter-ounce of marijuana. Police and the city of Garden Grove refused to return the pot, and appealed the ruling, but lost in the state appeals court last year. 

Incredibly, the

Appeals Court

correctly assessed the federal and state laws on medical marijuana and found NO conflict. The justices found that the federal laws were intended to stop drug ABUSE, while the state laws rightfully addressed MEDICAL use, as provided under the concept of Federalism. 

Here is how the

three Appeals Court

judges put it: 

“Congress enacted the CSA to combat recreational drug abuse and curb drug trafficking. Gonzales v. Oregon, supra, 546 U.S. at p. 271; Gonzales v. Raich, supra, 545 U.S. at pp. 10-13.) Its goal was not to regulate the practice of medicine, a task that falls within the traditional powers of the states. (Gonzales v. Oregon, supra, 546 U.S. at p. 269.) Speaking for the majority in Gonzales v. Oregon, Justice Kennedy explained, “The [CSA] and our case law amply support the conclusion that Congress regulates medical practice insofar as it bars doctors from using their prescription-writing powers as a means to engage in illicit drug dealing and trafficking as conventionally understood. Beyond this, however, the statute manifests no intent to regulate the practice of medicine generally.” (Ibid., italics added.)” 

The California Supreme Court refused to review the case in March. Now, the US Supreme Court has followed suit. The refusals to hear the appeal means the two high courts have accepted the state appeals court’s reasoning that California’s medical marijuana law is not preempted by federal law and finally lays to waste the bogus claim that state police can ignore state law and arrest patients, or keep their medicine under federal law. 

This is a huge win for all of us, because it removes one of the most basic foundations of law enforcements recalcitrance in obeying state marijuana laws and in upholding the rights of medical marijuana patients. 

Special thanks to Americans for Safe Access and their brilliant attorney, Joe Elford, for a job well done.US 

U.S Supreme Court hears discrimination claim re: company who reduces retirement pay of women who took maternity leave..

Wednesday, December 10th, 2008

Several Supreme Court justices questioned on Wednesday whether AT&T Corp. is discriminating against former employees by paying smaller retirement checks to women who took pregnancy leaves in the 1960s and 1970s. 

The court heard arguments in the case of four women who lost seniority credit when they took maternity leave before passage of a 1979 law that barred the practice of treating pregnancy leaves differently from other disability leaves. 

The size of retirement paychecks for thousands of women hangs in the balance as the court considers whether to credit decades-old maternity leaves in calculating pension benefits. 

Justice David Souter asked why payment of the lower retirement benefits now isn’t an act of discrimination. 

AT&T attorney Carter Phillips told the justices that AT&T has long since changed its leave policy to comply with the 1979 Pregnancy Discrimination Act. But he argued that law does not retroactively apply to old pregnancy leaves. He is appealing the ruling of a closely divided 9th U.S. Circuit Court of Appeals, which said the company’s conduct is a continuing violation of federal employment discrimination law. 

“It is not a facially discriminatory policy” as it operates now, he said. 

Phillips also claimed that employees should have brought their claims decades ago, when the company first made the decision affecting seniority. 

Justice Ruth Bader Ginsburg, who in the 1970s argued several key employment discrimination cases before the high court, told Phillips the denial of pregnancy leave credit had very little immediate impact on the women at the time, but carried the potential for future consequences upon retirement. When the women returned from leave “there was nothing to be done,” she said. 

Justice Stephen Breyer said it appears the company is still applying the benefits program today in a way that was deemed unlawful decades ago. 

Phillips said each paycheck did not create a new violation of law. 

“This is more like the present effects of past discrimination and therefore not actionable at this time,” Phillips said. 

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Louisville District Court winner spent $303,000 on campaign- Shake outspent Abramson

Wednesday, December 10th, 2008

WHAS reporter Mark Hebert reports on his blog that:
 “New Jefferson District Judge Katie King lent her own campaign $194,000 in the two weeks immediately before and after the November election, according to her filings with the Kentucky Registry of Election Finance.”
King is the daughter of Metro Council President and Louisville bank founder Jim King. He told me the campaign money came out of Katie’s pocket, not his. Katie King reported raising and spending a total of $303,000 for her campaign. Holton’s post-election report is not available though his campaign consultant says Holton raised a little over $100,000.”
“Katie King and District Judge David Holton (whom King defeated)  have swapped places since the election. King is now manning the district court bench that Holton had been appointed to by Governor Beshear and Holton has returned to the Jefferson County Attorney’s Office as a prosecutor.”

“Holton’s report filed with the Kentucky Registry of Election Finance shows he raised just $61,000 to try and retain his district judge’s seat.

In the other big judicial race in Jefferson County, Lisabeth Abramson retained her seat on the Kentucky Supreme Court despite Jim Shake having more campaign cash. Shake loaned his own campaign $22,000 less than two weeks before the election to bring his own contributions to $85,000 and his total campaign donations to $222,000. Abramson raised $174,000 including $115,000 out of her own pocket.” 

U.S. Supreme Court hears Capital Case where Prosecution withheld Exculpatory evidence – case causes Justice Stevens, to worry about ethics of the legal profession

Wednesday, December 10th, 2008

Prosecutors Didn’t Turn Over Proof of Killer’s Drug Use


Washington Post – December 10, 2008

The Supreme Court’s oral arguments in Cone v. Bell yesterday began with exasperation, Justice Antonin Scalia incredulous that lawyers were at it again on behalf of a brutal murderer who the court twice has said could be put to death.
“How long has this case been going on?” Scalia asked the lawyer for Gary Bradford Cone, who bludgeoned 93-year-old Shipley Todd and his 79-year-old wife, Cleopatra, at their home in Memphis in the summer of 1980.
The judge asked: “And you want to go back down again” for more hearings?
But the arguments ended an hour later with a different emotion — indignation — as several justices angrily questioned why Tennessee prosecutors had withheld evidence that supported Cone’s only defense: that he had committed the crimes during an amphetamine psychosis.
“If this was a case of just an honest mistake, it would be one thing,” said Justice John Paul Stevens, adding that he worried about the “ethics of the profession.”
“If it appears to have been a tactical decision and a tactical program, it seems to me very difficult to assume that the prosecutor thought it was really not important evidence.”
Cone’s case is a thicket of procedural questions, mistakes and dubious court rulings befitting a death penalty appeal that has bounced between state and federal courts for a quarter-century.
And yesterday’s actions raised the intriguing possibility that the Supreme Court, which twice has overturned lower-court decisions that called into question Cone’s death sentence, would reverse the latest decision that said he could be put to death.
There is no debate about the crime. Cole, a decorated Vietnam veteran, killed the couple in the midst of a spree that included shooting a police officer and robbing a jewelry store.
Jennifer L. Smith, a Tennessee associate deputy attorney general, told the justices that Cole broke into the Todds’ home “with the purpose of getting fed, getting cleaned up and getting out of town, and when the Todds ceased to cooperate with him, he had to ‘control them physically.’ That’s code, I suppose, for beating them to death because that’s exactly what he did.”
Cone raised an insanity defense, citing post-traumatic stress disorder from his Vietnam experience combined with his drug addiction. He presented several experts to testify on his behalf.
But the prosecutor said Cone was a drug dealer, not an addict. He noted that the experts relied solely on Cone’s descriptions of his drug addition and called the assertions “baloney.”
Cone was sentenced to death, a verdict upheld during his first trip through the state appellate courts.
It was years later that Cone and his attorneys gained access to the prosecutor’s files. They discovered that police reports had noted Cone was a heavy drug user and that the description was used when sending out bulletins seeking law enforcement help for his capture. There was a report that Cone had looked frenzied and “wild-eyed” at the time of his crimes.
When Cone tried to present the evidence in a new round of appeals, Tennessee courts mistakenly said it had been considered and rejected.
Cone’s attorney, Thomas C. Goldstein, told the justices that the evidence was key to his client’s insanity defense or could at least be presented as a mitigating circumstance that would keep him from being put to death.
“What he wants is one shot” at presenting the evidence to a lower court, Goldstein said. But the question is whether the federal courts have the power to do what the lawyer wants. Chief Justice John G. Roberts Jr. was the most skeptical, saying lower federal courts had decided that the claim was without merit. “I don’t know what would happen if we sent this case back,” he said. “They would conclude it again.”
But other justices were not as sanguine. Justice Stephen G. Breyer seemed particularly perturbed, challenging Smith on why the Memphis prosecutor had not turned over the evidence of drug use to Cone’s attorney.
“You’re saying that the lawyer, the trained lawyer for the government, who knew this information and knew the defense — just what? Just overlooked it by accident? Just what?” Breyer demanded.
Under repeated questioning from Justice David H. Souter about whether the evidence would have helped Cone, Smith finally said she did not think it would have.
“Then I will be candid with you that I simply cannot follow your argument because I believe you have just made a statement to me that is utterly irrational,” Souter said.
Smith said she didn’t think it relevant because “additional evidence of drug use says nothing more about his state of mind at the time of the crime than what was already presented.”
In the summer, Cone’s attorneys “floated the idea” of dropping the Supreme Court case if prosecutors in Tennessee agreed to life imprisonment without parole, said John Campbell, a Shelby County assistant district attorney. But, besides practical concerns about how such an agreement could be made, he said prosecutors were not interested because of the severity of Cone’s crime.

Arizona Courts improperly deny right to a jury trial

Tuesday, December 9th, 2008


East ValleyTribune Editorial   Phoenix, Arizona   – Nov. 8, 2008

The idea that anyone could be sentenced to even a day in jail without the opportunity to seek a jury’s opinion should be fundamentally offensive to a free society. Unfortunately, this situation continues to exist in Arizona, as the Arizona Court of Appeals again recently upheld a prevailing notion that the state and federal constitutions don’t mean what they say.
As Capitol Media Services reported Friday, the court of appeals said 13 Scottsdale topless dancers accused of misdemeanor violations of city laws can’t request jury trials and must have their cases heard by a city judge. The ruling falls in line with state Supreme Court precedent that criminal defendants have a constitutional right to jury trials only if the old Territorial Legislature had designated as such in criminal statutes before Arizona became a state, or if a conviction could result in a sentence of more than six months in jail.
This is the wrong approach to preserving the individual liberties that are essential to a constitutional republic. One of the most terrible powers of any government is the ability to revoke our freedom through incarceration. Throughout American history, we have been willing to risk that some criminals will avoid punishment to be certain those innocent of wrongdoing will not be locked up. Even a few days behind bars can disrupt a person’s life, possibly costing them a job or income and putting their family’s lifestyle in jeopardy.
Our country’s founders viewed juries as a critical check on the bureaucratic mindset and dictatorial attitude that can develop among judges, prosecutors and law enforcement. Everyday men and women help to make sure that justice is the ultimate outcome of a trial, instead of a slavish devotion to the wishes of those in authority.
Courts have claimed it would be too inconvenient and expensive to call in juries for “minor” cases. But it never should be convenient or cheap for government to take away our freedom. That route makes too easy for government to forget the concept of “innocent until proven guilty” and to favor locking away the good with the bad.


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Federal Judicial Salaries called Chump Change – Congress has prevented the judiciary from receiving cost of living adjustments six times since 1993

Tuesday, December 9th, 2008


John Pacenti  Daily Business Review December 09, 2008


Judge Peter T. Fay of the 11th U.S. Circuit Court of Appeals wrote four different speeches to give at the inaugural Biennial Southern District of Florida Bench and Bar Conference.


He scrapped them all to address the issue of judicial compensation and corruption in Congress. Fay called Washington, D.C., a “sea of corruption, greed and seedy practices” that has been infected by lobbyists, who impede even well-intentioned lawmakers from doing their job.


Inadequate compensation, though, has been an aggravating, decades-old splinter in the side of the federal judiciary that clearly touched a nerve with Fay, who has been on the bench for nearly 40 years.


Fay swiftly grabbed the attention of his fellow federal jurists and the 540 or so attorneys in attendance at the Nov. 21 conference in Hollywood, Fla., with his fiery speech.

“Judicial salaries are an outrage. The situation is beyond embarrassment. It’s insulting,” he declared.


Fay noted that a salary increase won’t affect him as he is nearing retirement. He’ll turn 80 in January. “But I am deeply concerned about what is happening to the federal courts,” he said.


As a result, America could have a federal judiciary that is not made up of the best and brightest practicing attorneys in the nation. New judges will increasingly come from academia and not be prepared for the courtroom, he said.


“If something isn’t done, federal judgeships will be nothing more than a civil service job,” Fay said.


Federico Moreno, the chief U.S. district court judge in Florida’s Southern District, introduced Fay at the bench-bar conference. He said he fears a disparity could be created on the bench in which only wealthy individuals can afford to take the position. “You want diversity. You want economic diversity. You want all types of people on the federal bench,” Moreno said.


Fay came to the conference armed with numbers, charts and observations. He said the morale nationally among federal judges has never been lower and they are resigning in record numbers: four this year and 38 in the past six years. One hundred of the 900 judges who preside in district and appellate courts around the nation, as well as the U.S. Supreme Court, have left the bench since 1990.


Fay said considering the billions doled out to the private sector during the current financial crisis, salaries of judges could easily be raised. The third branch of government eats up only 0.2 of a percent of the national budget.

According to the Administrative Office of the U.S. Courts, an associate Supreme Court justice makes $208,100, court of appeals judges pull in $179,500 and district court judges make $169,300.


Chump change for what the best legal minds could be making in the private sector. In England, for example, a high court judge — equivalent to a U.S. district judge — makes $318,168, according to the American College of Trial Lawyers.


“Congress just gave AIG billions of dollars,” he said, referring to the troubled insurance behemoth. “Its executives immediately held their business meetings in posh resorts and continue to pay these executives millions in salary and bonuses.”


If every judge established under Article III of the Constitution was paid $500,000 a year, Fay said, “It wouldn’t be a blip on the screen.”


Instead, Congress has prevented the judiciary from receiving cost of living adjustments six times since 1993, including recently when every other federal employee — including lawmakers — received one. A judge on the bench since 1993 has lost $208,000 in statutorily authorized pay that was specifically taken away from Congress. District judges should be making about $342,000, Fay said.


As a result, the salary of a district judge has 25 percent less purchasing power than the $40,000 annual salary that judges received in 1970.


“Our law clerks earn more than judges they clerked for within one or two years of private practice,” Fay said.


Edward B. Davis, who left the Miami federal bench in 2000 to enter private practice, said judicial pay was a problem even when he served as chief judge.


“I had some family matters I had to take care of and I realized over the time I had been on the bench that I had spent a little more than I earned,” said Davis, now chairman of Miami-based Akerman Senterfitt’s litigation practice. “I thought when I went on the bench I had plenty of retirement income and that proved not to be the case.”


He said for years few left the bench for money reasons. But in the 1990s federal judges — especially those with children in college — started to seek greener pastures.

“I wouldn’t say it was a flood but it has been a great increase,” Davis said. “I don’t think people realize how important it is for very good lawyers to get on the bench, and get them to stay.”


Last January, Supreme Court Chief Justice John Roberts urged Congress again to make judicial pay a priority, and indeed, the Senate Judiciary Committee approved a bill that would raise federal judicial pay by 32 percent.

But the legislation stalled.

In a time of economic crisis, pay raises for any federal employee are not politically popular, but Fay said in an interview after the speech that legal mistakes could proliferate if qualified judges are not put on the bench.

Fay called on the attorneys to take up the cause of judicial compensation, saying unlike AIG or the Big 3 car manufacturers, federal judges don’t have a single lobbyist to serve as their advocate.

David O. Markus, a Miami criminal defense attorney in attendance at the conference, agreed.

“Our federal judiciary is grossly underpaid and something needs to be done about it,” he said. “Our federal government spends so much money on so many different things, and it’s time we devote some of those resources to federal judges. If we don’t, we are not going to continue to get the best and the brightest for those very important judgeships.”


Justice Clarence Thomas violation of Sup. Ct. tradition re: Obama’s eligibility rejected by full court – One other case still to be heard

Tuesday, December 9th, 2008

The Supreme Court turned down an emergency appeal Monday from a New Jersey man who claimed that President-elect Barack Obama was not a “natural born citizen” and therefore was ineligible to become president.

The setback is the latest for a small group of persistent litigants who want the courts to block Obama from taking office. So far, none of these plaintiffs has convinced any judge that Obama’s assertion that he was born in Hawaii on Aug. 4, 1961, is incorrect.

The controversy has been prominent in the conservative blogosphere. It is based on the provision in the Constitution that says, “No person except a natural born citizen … shall be eligible to the office of president.” Any person born in this country is considered under U.S. law to be a natural born citizen.

But Leo Donofrio, a retired lawyer from East Brunswick, N.J., contended that Obama was ineligible to be president because his father was from Kenya. In October he sued New Jersey’s secretary of state, arguing that both Obama and Sen. John McCain should be removed from the state ballot because neither was a natural born citizen.


When that claim was rejected by a New Jersey judge and the state Supreme Court, he filed an application for an emergency stay with Justice David Souter, who turned it down Nov. 6. He then filed the same application with Justice Clarence Thomas. The court’s routine procedure in such instances is that the second justice refers the matter to the court as a whole.

Donofrio said Obama should “be required to prove … he was born in Hawaii. … Even if it were proved he was born in Hawaii, Sen. Obama’s father was born in Kenya, and therefore, having been born with split and competing loyalties, candidate Obama is not a ‘natural born citizen.’ ”

In Monday’s order, the court said it had denied Donofrio’s request for a stay.

Most of the suits involving Obama’s birth say state officials should investigate his Hawaiian birth certificate to see whether it is valid. The Supreme Court decides legal issues involving federal law and the Constitution but does not resolve factual disputes.

Still pending at the high court is an appeal petition claiming Obama was born in Kenya. Hawaii’s Health Department and its registrar of vital statistics have determined he was born in Hawaii.

The judge dismissed the suit on the grounds that the plaintiff did not have standing to sue. The justices are likely to reject his appeal in a few weeks.


California facing $10 billion a year in prison costs, studying major reforms in theories of incarceration – Federal Court case may force the issue –

Sunday, December 7th, 2008


Federal judges weighing solutions to California’s prison overcrowding crisis


A sweeping order to release prisoners is one possible outcome; at issue is whether overcrowding is the cause of poor healthcare that violates their constitutional rights.


Los Angeles Times  December 7, 2008


Reporting from San Francisco — After years of failed attempts by California officials to rein in their overburdened prison system, three white-haired federal judges appear determined to find the solution themselves in a lofty courtroom here.

The judges are presiding over a trial in two long-running lawsuits intended to discover whether an overcrowding crisis is the prime cause of medical and mental healthcare so poor that it violates inmates’ constitutional rights; if it is, they will decide how to fix the problems.


 Although the trial is only halfway over, the judges are speaking and acting as if they have already decided to take action against the state. Now they seem only to be searching for answers on precisely what action to take and have openly contemplated an order to release prisoners and impose a cap on the state prison population.

“The question from our point of view is developing an effective set of orders that will protect society . . . and ensure there is a constitutionally sufficient level of care,” explained U.S. District Judge Lawrence Karlton, who said later that the trial wouldn’t be needed “if the state were to wake up and start behaving in a rational way.”

A ruling is expected early next year. Lawyers for Gov. Arnold Schwarzenegger, state lawmakers and local law enforcement officials say they will appeal any decision to release prisoners directly to the U.S. Supreme Court.


Inmates’ attorneys seek an order to remove 52,000 inmates over two years from a $10-billion-a-year state system that incarcerates more than 170,000 people in 33 state prisons and in fire camps, drug programs and institutions in other states.

Some experts think the state could dramatically reduce overcrowding without a public safety risk if it stopped a revolving door of tens of thousands of offenders who are repeatedly sent from their communities to prison for a few months at a time on parole violations and low-level crimes.

“We catch people and we release them,” Jeanne Woodford, a former corrections chief under Schwarzenegger and an ex-warden at San Quentin State Prison, told the judges. “We don’t do anything for them while they’re incarcerated, and we’re really just disrupting their lives over and over again, and it really doesn’t add to public safety.”

Woodford and others testifying for the inmates suggest keeping low-level offenders in less expensive alternatives such as county jail or rehabilitation programs.

The jurists — Karlton, U.S. District Judge Thelton Henderson and 9th U.S. Circuit Court of Appeals Judge Stephen Reinhardt — have interrupted attorneys for both sides to question witnesses about the cost and effect on the public of various steps they might take.

They engaged Stanislaus County Probation Chief Jerry Powers about what would happen if the state were forced to let a car thief out of prison two months early. Would extra time on the street allow him to steal more cars? Or would he steal the same number of cars before getting caught no matter when he was released? Answer: It depends on the skill of the thief.

The state’s lawyers say there has been improvement in the prisons. And the state contends the flaws, including a lack of access to care and treatment space and incompetent doctors and nurses, can’t be tied primarily to overcrowding.

A former medical official in the Florida prisons who studied California’s system testified that there used to be a “culture” that prioritized keeping institutions secure over providing healthcare, but he said that changed once Henderson appointed a prison medical czar in 2006.

“There clearly has been a shift,” the doctor, David Thomas, said via video from his home state. He also said it is acceptable to treat inmates in a bathroom to preserve patient confidentiality, as California prison doctors have done for lack of space.

“It’s not necessarily the best way to do things, but certainly one has to be creative,” Thomas said.

The state has acknowledged that some prisons house twice as many inmates as they were designed for because of years of tough-on-crime initiatives and extensive legislation to lengthen criminal sentences. Although many experts have proposed solutions, little has changed. Now the state is fighting J. Clark Kelso, the court’s medical czar who wants to spend $8 billion to build inmate healthcare facilities.

Meanwhile, inmates have pushed the cases that put the judges in a position to make state policy. Federal law requires the judges to consider the effect on public safety of whatever they choose, and the state has sought to draw a link between California’s stiff criminal penalties and recent reductions in crime.

But James Austin, a criminologist, testified that other states have reduced sentences and prison population and seen drops in crime as well. There would be no added risk if California shortened prison terms as other states have done, he said.

“In Indiana, if you get your high-school degree, you get 12 months off,” he said. “If you get a college degree, you get two years off. The whole idea here is to provide that carrot for prisoners. . . . You lower the risk, you lower the length of stay, you lower the cost for that system.”