Archive for April, 2009

Bankruptcies are booming

Monday, April 13th, 2009

Bankruptcies are booming 

Nearly 1.2 million debtors filed for bankruptcy in the past 12 months, according to federal court records. 

Last month, 130,831 sought bankruptcy protection – an increase of 46 percent over March 2008 and 81 percent over the same month in 2007. 

Bankruptcy filings could reach 1.5 million this year and level off at 1.6 million next year – around the same time economists expect an economic recovery to begin. 

Congress voted in 2005 to make bankruptcy more cumbersome after years of intense lobbying from the nation’s lenders, who complained that people were abusing the system. Before the move to change the law, bankruptcies were running at what was then an all-time high of about 1.6 million per year. 

The tighter requirements initially appeared to work, with bankruptcies plummeting from a record-shattering 2 million cases in 2005 – a total that reflected a rush to file before the new law took effect – to 600,000 in 2006. 

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Details emerge about prosecutorial misconduct in Sen. Stevens case -witness coercion-subordination of perjury-withholding exculpatory evidence

Monday, April 13th, 2009

Details emerge about prosecutorial misconduct in Sen. Stevens case
Withholding Exculpatory Evidence
The exculpatory evidence which was withheld by Federal Prosecutors in the Sen. Stevens prosecution included notes made from a government interview with key prosecution witness Allen.  In that interview Allen said he had no recollection of a conversation but at trial he testified in great detail about the conversation.
This conversation involved the value of construction work done on Sen. Steven’s home. These notes could have provided valuable cross-examination information for the defense and could have been useful in the defendant’s closing argument..
The notes were never provided to the defense. Two members of the Justice Department’s trial team had been present at that interview with Allen.

Witness coercion – Subordination of Perjury

Moreover, one of Stevens’ trial lawyers, Brendan V. Sullivan Jr., who is not related to the trial judge, complained that the government bent Allen to its will by promising not to indict other members of his family and by allowing him to sell his interest in VECO for millions of dollars. Allen pleaded guilty to bribery charges in Alaska but remains free from custody.

“They knew it was false testimony,” Sullivan said at a hearing last week. “They knew it was false.”

Obstruction of Justice

After the trail an FBI agent acted as a whistle-blower and alleged that prosecution team member Marsh attempted to persuade his fellow lawyers not to turn over FBI material to the defense
The Government lawyers were also accused of failing to turn over a copy of a check to the defense, and repeated failure to comply with court order to turn over summaries of witness interviews compiled by FBI agents.

Five prosecution lawyers and their supervisor are all under investigation.

Federal Judges sue over pay raise freeze – Congress has excluded judges from receiving promised inflation adjustment pay raises in six of the past 16 years.

Friday, April 10th, 2009

April 10, 2009 

Eight federal judges are suing the US government for back pay in a potential landmark case that raises fundamental questions about how the Founding Fathers sought to protect an independent judiciary.

 

Five US district judges and three appeals-court judges charge in their suit that Congress reneged on a pledge to provide America’s jurists with automatic cost-of-living increases. Congress has excluded judges from receiving inflation adjustments in six of the past 16 years.

 

The judges say the action violates the Constitution’s compensation clause, which bars Congress from reducing a judge’s pay.

 

The lawsuit, Beer v. US, is being litigated in the Court of Federal Claims in Washington. Government lawyers filed their response this week. In it, the government says the same issue was fully litigated in a 1997 case called Williams v. US, and the judges who filed that complaint lost.

 

What makes Beer v. US particularly significant is that the plaintiffs are federal judges claiming a constitutional violation.

 

The case is also worth watching because the ruling judges themselves will have a direct financial interest in the outcome. The law authorizes judges to hear such cases when there is no other provision for appointment of a disinterested adjudicator.

 

The complaint seems aimed at the US Supreme Court, where seven of the nine justices have made public statements urging congressional action on judicial compensation.

Compensation has long been a sore point among judges in the US.

 

Chief Justice John Roberts has repeatedly asked Congress to boost salaries.

 

Currently, district judges earn $174,000 a year. Federal appeals-court judges are paid $184,500 a year, while associate justices at the Supreme Court make $213,900. The chief justice is paid $223,500.

 

Supporters of pay increases say flat or declining judicial compensation threatens the independence of the judiciary and the quality of American justice. The best legal minds, they say, will opt for million-dollar careers in the private sector.

 

Sixty-three judges have left the federal bench since 2000, according to James Duff, director of the Administrative Office of the US Courts. Eighteen of them left before qualifying to receive any pension or annuity benefits, he says.

 

 

The judicial pay problem is particularly acute in major urban areas, Duff says: “$174,000 a year is still a great salary in Booneville, Ky., where my family is from. But in New York or Washington or San Francisco, it is not [a great salary] when you are raising a family and trying to send children to college and so forth.”

 

In the top US cities, a judge’s former law clerk may earn more in the first year of private practice than the judge he or she clerked for. Many government lawyers also earn significantly more than federal judges.

 

In 2007 testimony before Congress, Justice Samuel Alito explored the issue by referring to an ad for new lawyers at the Securities and Exchange Commission. The advertised pay for a supervisory attorney at the SEC was $26,000 more than a federal judge was earning at the time. The pay for a trial attorney was $10,000 more.

 

“It would be reasonable to conclude,” Justice Alito said, “that a district judge who presided over an SEC case may be the lowest-paid attorney in the courtroom.”

 

The Beer v. US complaint says that in 1989, Congress established a system for judges to receive automatic annual salary adjustments. The adjustments were to be equal to adjustments granted to federal civil servants.

 

But Congress has blocked the adjustments for judges six times.

 

In November 2001, Congress responded to the Williams lawsuit by amending the existing law to prohibit automatic cost-of-living or other salary adjustments without specific year-to-year authorization by Congress.

Justice Lukowsky dissent in 1977 suggests how the court should react to prosecutorial misconduct.

Friday, April 10th, 2009

I’m sorry I never got to met Justice Lukowsky. We frequently find comments he made that that are wise and timeless.  His suggested remedy could well be applied to the current practice of prosecutors continuing to use the “Send a Message” argument although the appellate courts continue to condemn this argument.
Justice Lukowsky in his dissent in Darnell v. Com., 558 S.W.2d 590 (Ky., 1977, objected to the continued practice of prosecutors to ignore prior court rulings that forbade the Commonwealth in commenting on a defendant’s post arrest silence.
“The time has come for us to take a more prophylactic approach. We should exercise our supervisory authority over the lower courts of Kentucky and hold that whenever this error is committed it will result in reversal and a new trial. If that should prove to be insufficient to eliminate this form of gamesmanship we should assess the costs of appeal and the new trial against the Commonwealth Attorney.”


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State of Washington Supreme Court puts limits on number of charged offenses by use of multiple photos of child-porn

Friday, April 10th, 2009

 

Defendants accused of possessing multiple images of child pornography can only be prosecuted for one offense, without regard to the number of images or how many children are depicted, the state Supreme Court ruled Thursday.
By Steve Miletich Seattle Times
Related
·                                 State v. Sutherby (PDF)
·                                 State v. Sutherby (Concurrence/Dissent)
·                                 State v. Sutherby (Dissent)
Defendants accused of possessing multiple images of child pornography can only be prosecuted for one offense, no matter the number of images or how many children are depicted, the state Supreme Court ruled Thursday.
The 8-1 ruling drew a sharp dissent from Justice James Johnson, who said defendants should not be entitled to a “volume discount.”
It also drew criticism from the King County Prosecutor’s Office, which said the ruling will have “statewide implications” and lead to shortened sentences for people convicted of possessing a large volume of child pornography.
The court’s decision came in a Grays Harbor County case in which a jury convicted Randy Sutherby in 2005 of child rape and molestation of a 5-year-old female relative.
He also was convicted of 10 counts of possessing depictions of minors engaged in sexually explicit conduct, relating to images of other children found on computer files in his home. The judge, at sentencing, reduced the counts to seven based on a new interpretation of the images.
In its decision, the Supreme Court sent the case back to Grays Harbor County, ruling that Sutherby could only be sentenced for one count of possessing child pornography because of the wording of state law.
In a separate 6-3 vote, the court also overturned the rape and molestation convictions, finding that Sutherby was poorly represented by his trial attorney.
Writing for the majority on the child-pornography issue, Justice Debra Stephens said state law makes it illegal to possess “any” visual or printed image depicting a minor engaged in sexually explicit conduct.
The court, in other cases, has consistently found the word “any” means everything, regardless of the quantity, Stephens wrote.
Johnson wrote that the majority’s opinion undermines the state Legislature’s intent to suppress the demand for child pornography by allowing stiffer punishment for possessing multiple images.
Ian Goodhew, deputy chief of staff in the King County Prosecutor’s Office, said the Legislature should address the ruling “to ensure that possessors of child porn are punished for the actual harm that they cause to each child depicted.”
“The possession of child pornography is extremely troubling when you consider that in each image a child is being forced to engage in a sexual act,” Goodhew said. “Each child suffers real harm in every image.”
 

The court, he said, found there is no difference between possessing one or 100 images.
The sentencing range for one count of possessing child pornography is 12 to 14 months in prison for first-time offenders, Goodhew said.
The range has increased to 26 to 34 months for two counts and more for each additional offense, he said.
But under the court’s ruling, additional time won’t be allowed even if a defendant possesses “thousands of images” of children being raped, he said.
James Lobsenz, a Seattle attorney who represented Sutherby on appeal, said the law already allows the makers of child pornography to be punished for each time they produce an image of a minor.
But a people looking at the material — who generally possess large quantities — don’t victimize minors in the same way, Lobsenz said.
“I think the court got it right,” Lobsenz said. “The Legislature did not intend to make astronomical sentences that kept getting increased and increased and increased because you possessed more than one.”

UK College of Law announces new Dean

Friday, April 10th, 2009

David A. Brennen, a University of Georgia professor who has specialized in teaching tax law at Georgia since 2006, is scheduled to take over on July 1 as the new dean of the UK College of Law.Tthe previous dean, Allan Vestal, returned to teaching full time. Brennen’s appointment must be approved by the UK Board of Trustees. 

Texas Supreme Court considers how far courts should go in allowing electronic discovery

Wednesday, April 8th, 2009

 

How Far Is Too Far in E-Discovery?

By Mary Alice Robbins   Texas Lawyer   April 7, 2009
In oral arguments last week, the Texas Supreme Court wrestled with how far courts should go in allowing electronic discovery.
In Re: Weekley Homes LP raises an issue of first impression for this state’s Supreme Court: Can a trial court order one litigant in a civil suit to provide a court-appointed computer forensic expert access to its computer hard drives for mirror imaging and searching, if the opposing side pays the costs?
During arguments in the writ of mandamus action, the justices grilled the attorneys for Weekley Homes, a defendant in the underlying suit, and HFG Enclave Land Interests, the plaintiff in that suit.
Former state Supreme Court Justice Craig Enoch, Weekley’s appellate attorney, had barely begun his argument on March 31 when the questions began. The first question led to a discussion of the Texas Rules of Civil Procedure before circling back to the issue of first impression.
“Can you envision a type of case where an entire hard drive would be required to be produced?” Justice David Medina asked.
Enoch said no – because he doesn’t believe the state’s discovery rules allow it.
The two sides disagree over whether HFG filed its motion for limited access to Weekley’s computers under the proper Texas Rule of Civil Procedure.
HFG sought limited access to Weekley’s computer hard drives under TRCP 192, which outlines permissible discovery, such as requests for disclosure and requests for entry onto real property.
Christopher Rentzel, HFG’s attorney and a partner in Bracewell & Giuliani in Dallas, told the court during arguments, “From the outset we have believed that [TRCP 192] was the controlling rule.”
Rentzel says in an interview, “Our motion for limited access to Weekley’s computers was really a form of a motion to compel.” HFG wants to search for e-mails it claims Weekley may have deleted as part of Weekley’s normal process for creating more storage capacity on its computers, according to its response to the mandamus petition.
But Enoch says in an interview that TRCP 192 does not identify access to computer hard drives as permissible discovery.
Enoch told the court that TRCP 196.4, which governs production of electronic data, also does not permit the discovery HFG seeks. TRCP 196.4 does not allow a hard drive to be removed from its owner and given to the other side to search for documents that Weekley contends it does not have, Enoch argued.
TRCP 196.4 means that “even if you get to mirror the hard drive, the hard drive remains in the possession of the responding party,” Enoch said. “The only question is, if it’s going to be very expensive to reproduce it, the court has to address the cost of doing so.”
CORE QUESTION
Although the application of the discovery rules is an issue in Weekley , the Supreme Court justices seemed more interested in other matters during the arguments.Justice Phil Johnson asked Enoch at one point how a court can make sure that a hard drive is properly examined “if the owner doesn’t know how to look for something in there.”
Johnson’s question highlights a key issue in Weekley : What is a court to do if one litigant asks to retrieve deleted e-mails that the litigant contends are crucial to its case but the opposing party says there is no proof the e-mails are relevant to the litigation or that the e-mails even exist.
The underlying suit, HFG Enclave Land Interests v. Enclave at Forney Branch LTD, et al., involves a dispute over allegedly defective lots HFG purchased in a Dallas subdivision.
HFG’s response to Weekley’s petition for writ of mandamus alleges the following factual background on the underlying suit: In 2002, Weekley, a homebuilder, purchased lots from Enclave at Forney Branch. The two had entered into a builder contract. In 2004, Enclave at Forney Branch assigned its interest in the builder contract to HFG. On Nov. 29, 2004, Weekley executed an assignment and estoppel certificate, certifying that Enclave at Forney Branch had fulfilled all of its duties and obligations under the builder contract and achieved substantial completion in the subdivision and that Weekley knew of no defective lots. HFG sued Enclave at Forney Branch in August 2006. HFG added Weekley as a defendant in June 2007, alleging Weekley made false representations in the estoppel certificate and alleging claims against Weekley for fraud, fraudulent inducement and negligent misrepresentation. HFG alleges, among other things, that Weekley knew prior to making the representations, warranties and covenants in the estoppel agreement that the subdivision contained numerous unsafe lots and that Weekley attempted to take remedial measures that did not comply with Dallas city codes.
“We deny that,” says Winstead shareholder Joel Reese of Dallas, Weekley’s lead counsel in HFG. Weekley believes HFG’s claims against it are without merit, Reese says.
In a statement, Reese writes that there is no evidence that the allegedly deleted electronic data even exists, “nor was a proper request made for a search of computer hard drives for ‘deleted’ data.”
In its response to Weekley’s mandamus petition, HFG alleges Weekley failed to produce documents critical to HFG’s case, including e-mail communications between four of the homebuilder’s executives.
Rentzel says in an interview that Weekley produced 30 e-mails from one of its executives and one e-mail from another Weekley executive. HFG did not receive any of the e-mail communications involving the other two Weekley executives, he says.
On March 12, 2008, HFG filed a motion to compel Weekley to produce documents HFG had requested. But 134th District Judge Anne Ashby denied the motion in an order signed June 27, 2008.
In July 2008, HFG filed its motion for limited access to Weekley’s computers. Ashby granted that motion in an order signed Aug. 25, 2008.
Ashby’s order establishes the procedure for examining the hard drives: Weekley must provide access to the computers used by four Weekley executives to HFG’s forensic experts. The experts will make forensic images of the hard drives. Using a list of about 20 terms — including “slope stability” and “fence” — the experts will search the forensic images for documents responsive to HFG’s outstanding document requests. The experts will make electronic copies of data responsive to the search terms and will provide those copies to Weekley’s counsel. Weekley will have the right to review the extracted data and to designate documents as not relevant, not discoverable or protected by privilege. The experts are prohibited from disclosing the nature or content of any documents or information that Weekley designates as privileged or confidential.
Weekley filed a petition for writ of mandamus with Dallas’ 5th Court of Appeals, which denied the petition in a one-paragraph opinion Sept. 24, 2008. Weekley petitioned the state Supreme Court for mandamus Oct. 3, 2008, alleging that the trial court abused its discretion in entering the order granting HFG’s motion for limited access to Weekley’s computers because the order conflicts with the TRCP. See the Petition for Writ of Mandamus, the Real Party in Interest’s Response to Petition, the Response Brief on the Merits and the Reply to the Response Brief on the Merits.
METAPHORS AND MAKING EFFORTS
In the March 31 arguments, Enoch noted that documents kept in filing cabinets in a warehouse can be accumulated on computer disks. But the concepts embodied in TRCP 192 apply regardless of whether files are in a warehouse or on a disk, he said.
“We don’t allow a requestor to go into our warehouse and start leafing through files to determine what they want,” Enoch argued.
Enoch also told the court, “The record in the case is we have produced all the documents we have.”
But Justice Harriet O’Neill told Enoch, “Here’s what troubles me about this case. As I read the briefing, all I see is ‘you can’t do this, you can’t do that, you can’t do this.’ But there’s no effort to say, ‘Let us fashion a way to get this information.’ “
Rentzel told the justices Weekley has never made an offer to go into its computer system and produce the deleted e-mails. But while Rentzel said HFG’s motion was for limited access to Weekley’s computers, Medina said the order that the trial judge signed granting the motion seems “overly broad,” requiring the production of the entire hard drive system.
In an interview, Rentzel says Waco’s 10th Court of Appeals upheld a trial court’s similar order that permitted a neutral expert to obtain mirror images of what was on computers’ hard drives in 2008′s In Re: Honza. In the 2-0 decision, the 10th Court held that the order in Honza was not overly broad and was tailored to prohibit the disclosure of privileged or confidential information.
“Federal district courts have consistently held that electronic data stored on computer hard drives, including ‘deleted’ files and related data, is subject to discovery,” Justice Felipe Reyna wrote in Honza. Then-Justice Bill Vance joined Reyna in the opinion. Chief Justice Tom Gray did not participate in the decision.
Weekley concedes in its mandamus petition to the Supreme Court that the 10th Court’s order in Honza allowed the production of a database and permitted the imaging of an opponent’s hard drive to find specific internal “metadata” associated with two contracts. But Weekley argues that, unlike in this case, the plaintiff in Honza first sent a request for electronic and magnetic data before filing a motion. “Further, in Honza, the plaintiff was not seeking a license to rummage through its opponent’s files to look for any and all documents that mention twenty generic terms,” Weekley contends in the mandamus petition.
Rentzel says in an interview that over the past decade courts in other jurisdictions have granted neutral computer forensic experts access to the computers of a litigant at the request of the opposing party. In 1999′s Playboy Enterprises Inc. v. Welles, the U.S. District Court for the Southern District of California held that the plaintiff was entitled to discover e-mails on the defendant’s computer hard drive and appointed a computer expert to create a mirror image of the hard drive.A more recent decision came March 19 when the New Hampshire Supreme Court affirmed a trial court’s order in New Hampshire Ball Bearings Inc. v. Jackson, et al. that allowed, among other things, the plaintiff to have access to 35 of the defendant’s computer hard drives for mirror imaging.
Beth Thornburg, a Southern Methodist University Dedman School of Law professor who teaches civil procedure, says with the amount of information now kept electronically, courts must deal with disputes over how much effort parties need to put into finding deleted information. Thornburg says guidance from the Texas Supreme Court would be helpful in this area but she does not think the issue will go away, no matter how the high court rules in Weekley .
Notes Thornburg, “I suppose if they were to say, ‘No, you can never get deleted information from your opponent’s hard drive,’ that would make some of it go away, but I think that would be an unfortunate decision.”


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Stevens judge cites ‘pervasive’ withholding of evidence by Federal Prosecutors

Tuesday, April 7th, 2009

By ERIKA BOLSTAD and MARISA TAYLOR Anchorage Daily News

April 7th, 2009

 In setting aside former Sen. Ted Stevens’ indictment Tuesday, a U.S. District Judge Emmet Sullivan  declared war on what he said is an increasingly pervasive government tactic in the administration of American justice: the penchant on the part of federal prosecutors to withhold evidence. – Anchorage Daily News April 7, 2009
U.S. District Judge Emmet Sullivan said he has seen “troubling evidence” across a spectrum of cases where prosecutors have failed to turn over to defense attorneys what’s known as exculpatory evidence — information that might help criminal defendants with their cases. Such problems weren’t limited to Stevens’ case, Sullivan noted Tuesday. Public officials, private citizens and even Guantanamo Bay detainees have all had their rights trampled on, he said.
“We must not forget the Supreme Court’s direction that a criminal trial is the search for the truth,” Sullivan said during the hearing to drop Stevens’ case.
Last week, Sullivan rebuked the government for not turning over medical records to lawyers for Guantanamo Bay detainees, and ordered Justice Department lawyers to explain why he shouldn’t cite them for contempt of court.
“How can this court have any confidence whatsoever in the United States government to comply with its obligations and to be truthful to the court?” he asked.
Sullivan used almost identical language during Stevens’ trial, and was equally irate with

 federal prosecutors. In Stevens’ case, though, Sullivan actually did hold three

government attorneys in contempt for failing to turn over documents in post-trial matters.

 

And on Tuesday, Sullivan appointed a special prosecutor to investigate whether

government attorneys had broken the law by failing to ensure that Stevens received a fair

trial.
U.S. Attorney General Eric Holder said in an interview with CBS News Tuesday night that he “took actions as quickly” as he could in the Stevens case and that he will continue an internal review of how prosecutors handled the case. On Tuesday, Sullivan mentioned his “high regard” for Holder as lending weight to his decision to end the case. The two are friendly and overlapped in their time on the District of Columbia Superior Court before moving on to higher office. A spokeswoman for the Justice Department said Tuesday they will review Sullivan’s order in the Stevens case and “will continue to cooperate with the court on this matter.”
“We take seriously the court’s comments regarding the discovery process and will review them for possible future actions,” said spokeswoman Laura Sweeney. “As the Attorney General indicated last week, the fact that there is an inquiry into the prosecutors’ actions does not mean or imply any determination has been made about their conduct.”
Ronald Safer, a white-collar defense lawyer and former head of the criminal division of the U.S. attorney’s office in Chicago, called the dismissal “a tremendously powerful statement to make at the beginning of the administration.”
“It tells prosecutors don’t fool around with your constitutional obligations – don’t hide evidence you should turn over,” Safer said. “If you do, the attorney general will dismiss even the biggest, highest profile cases and see that you are disciplined for your actions.”
Guy Singer, a former Justice Department lawyer who prosecuted corruption cases during the last administration, described the dismissal as “a stunning decision.”
“Part of Eric Holder’s role clearly is to re-instill confidence that the Department of Justice is not being political,” Singer said. “I don’t think he would take lightly abandoning his prosecutors when there are allegations of misconduct out there. My guess is that he believed it was the right thing to. It’s a message to prosecutors that if you’re out there committing misconduct you’re on an island.”
Sullivan suggested Tuesday during Stevens’ final court hearing that he would like to see Holder make mandatory training reminding all of his prosecutors that they have an obligation to turn over favorable evidence under the 1963 Supreme Court case, Brady v. Maryland.
Sullivan said Tuesday he may go as far as to enter an order at the beginning of each criminal case reminding federal prosecutors of their Brady disclosure duties. He urged other federal judges to do the same.
The 61-year-old judge, who was appointed to the bench by presidents of both parties, may be in the perfect position to make such suggestions.
President Ronald Reagan first named Sullivan to the Superior Court of the District of Columbia in 1991. President George H.W. Bush appointed him to the District of Columbia Court of Appeals in 1991, and President Bill Clinton named him to the federal bench in 1994.
A Washington D.C. native, Sullivan has an undergraduate and law degree from Washington D.C.’s Howard University. He married his high school sweetheart and has two children and two grandchildren.
Sullivan had a relatively mild manner in court during the Stevens trial, unless prosecutors angered him. After blowing his fuse, though, he would retreat to his chambers and then return to the courtroom calmer, and with a clear plan for how to proceed.
He bent over backwards to accommodate jurors during the trial by making sure they had plenty of breaks and scheduling the events of the day around their needs. The trial went on during football season, and on Mondays during the trial, he always had a joke for the jurors about the Washington Redskins.
At one point during Stevens’ trial last fall, the chief Justice Department prosecutor in the case, Brenda Morris, told Sullivan that the swift-moving nature of the senator’s trial was bound to lead to some snags in turning over information to the defense. Stevens was up for a difficult re-election bid and asked for a speedy trial so he could have a verdict before voters make their decision about his future on Nov. 4.
But Sullivan countered that speed was no excuse.
“It’s not about the pace of litigation, it’s about the fairness of the proceedings,” he said at the time. “We don’t sacrifice fairness for expedience.”
 


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the loss of a peremptory challenge due to a state court’s good-faith error is not a matter of federal constitutional concern

Tuesday, April 7th, 2009

The embattled peremptory challenge got no help from the United States Supreme Court today in Rivera v. Illinois.   

Rivera tried to strike a juror in his Illinois state court trial.  The trial judge said no, finding a Batson violation, and seated the juror.  All sides agree now that was a mistake, and the peremptory strike was proper.  

So does Rivera get a new trial?  That’s what he argued to the Supreme Court.  Finding hope in the Court’s 1965 Swain v. Alabama pronouncement that “[t]he denial or impairment of the right [to exercise peremptory challenges] is reversible error without a showing of prejudice,” Rivera argued the trial judge’s mistake violated his constitutional right to due process.  

But the Supreme Court refused to grant a new trial. The opinion was unanimous. 

  Here’s the constitutional law of peremptory challenges as it stands on this day: 

§ “If a defendant is tried before a qualified jury composed of individuals not challengeable for cause, the loss of a peremptory challenge due to a state court’s good-faith error is not a matter of federal constitutional concern. Rather, it is a matter for the State to address under its own laws.” 

§ “[T]his Court has consistently held that there is no freestanding constitutional right to peremptory challenges.” 

§ “Because peremptory challenges are within the States’ province to grant or withhold, the mistaken denial of a state-provided peremptory challenge does not, without more, violate the Federal Constitution.” 

__________________ 

The opinion is Rivera v. Illinois.  Related posts here

Allegations against Federal Prosecutors aired as Sen. Stevens conviction faces dismissal

Tuesday, April 7th, 2009

 

Excerpts from New York Times article  April 6, 2009
 

Lawyers poring over the wreckage of the Senator Ted Stevens trial said they believed the case had been poorly managed and inadequately supervised, lacked sufficient resources and been hampered by conflicts between prosecutors and F.B.I. agents going back months.

 

The trial record was filled with instances of serious prosecutorial mistakes that dismayed the large corps of Washington lawyers who followed the case, including former prosecutors and defense lawyers.

 

Most alarming to these lawyers was the prosecutors’ repeated failure to disclose information that might have helped the defense despite the sanctity in which lawyers are taught to hold those obligations.

 

In an example of the disarray of the government team, one F.B.I. agent said in an affidavit that as many as 30 boxes of unsorted evidence sat outside a prosecutor’s office as the trial was to begin.

 

The most important question that remains largely unanswered, said officials and veteran lawyers, is whether the corner cutting, especially the serial concealment of information damaging to the government, was a result of flawed judgments and heavy workloads or an intentional step by prosecutors to increase their chances of a high-profile conviction.

 

The Justice Department’s Office of Professional Responsibility is investigating the case and could recommend sanctions for some of the prosecutors.

One F.B.I. agent, Chad Joy, has said in an affidavit that he sat in on meetings in which Stevens prosecutors were clearly aware that they were ignoring their professional obligations to turn over materials that the defense could use to counter the charges.

 

Agent Joy, who still works for the bureau, took the unusual step of asking the government for official protection as a whistle-blower. His 10-page affidavit has become an important part of the collapse of the case.

 

The problems with the Stevens case became glaringly apparent during the trial when the judge, Emmet G. Sullivan of Federal District Court here, admonished prosecutors after government lawyers sent a witness back to Alaska without notifying the judge or the defense.

 

The Justice Department is examining whether senior managers, including members of the public integrity unit, were lax in monitoring the prosecutors and how such a significant case could have gone so far awry without senior officials’ stepping in.

 

After the trial additional exculpatory evidence was discovered but  “there was no way for the judge to impose any remedy, because the trial had already happened and the defendant was convicted…”

U.S. Supreme Court to rule on “Civil Commitment” of sex offenders. 4th. Circuit Ct. of Appeals had thrown law out which allows sex offenders to be held in jail indefinitely.

Tuesday, April 7th, 2009

April 6, 2009

The Chief Justice has delayed the release of 77 convicted sex offenders, who have served out their criminal sentence and are being held under the Adam Walsh Child Protection and Safety Act.  Under this act, the courts can order a sex offender be held in jail  indefinitely for the protection of the public.

The order by the Chief Justice of the Supreme Court means up to 77 inmates in prisons in North Carolina will have to stay there for a while.

Chief Justice John Roberts granted the Obama Administrations request which means the issue must be decided by the US Supreme Court.

According to the Justice Department, some of those 77 inmates could have been released as early as next week.

The administration claims many of them are sexually dangerous and should be held while the issue works its way through the federal appeals court.

Recently, the 4th U.S. Circuit Court of Appeals ruled congress crossed the line when it enacted a law allowing for indefinite commitment of sex offenders.

The question is, should the government have the power to put you in prison indefinitely just because you could pose a future threat?

Four men who served prison terms for possession of child pornography and sexual abuse of a minor say no.

They were supposed to get out two years ago but the government determined they still pose a threat.

Civil commitment was authorized by an act signed by President Bush called the Adam Walsh Child Protection and Safety Act.

The act also established the national sex offender registry.

U.S. Supreme Court Disallows Confession obtained when Defendant’s “Presentment Rights” to a magistrate were delayed more than six hours

Tuesday, April 7th, 2009

The U.S. Supreme Court recognizes a defendant’s “presentment right” after arrest, and finds that a six hour delay while confession was obtained is error. 

The Presentment Right is the right of a defendant to be taken before a judge promptly after his formal arrest.

In Kentucky that right is spelled out in Criminal Rule 3.02. Initial appearance before the judge.       
“(1) An officer making an arrest under a warrant issued upon a complaint shall take the arrested person without unnecessary delay before a judge as commanded in the warrant….”
 

A sharply divided U.S. Supreme Court on Monday declared that federal agents cannot use unreasonable delay tactics to secure confessions.

Reversing the 3rd U.S. Circuit Court of Appeals, the justices voted 5-4 in holding that even a “voluntary” confession obtained by federal authorities may be deemed inadmissible if more than six hours elapse between an arrest and a suspect’s first court appearance.
The high court’s decision in Corley v. United States was a victory for Assistant Federal Defender David L. McColgin in his first Supreme Court argument.

Writing for the majority, Justice David H. Souter found that lengthy delays before a suspect sees a judge can give the government too much leverage over someone who has been arrested.

“Federal agents would be free to question suspects for extended periods before bringing them out in the open, and we have always known what custodial secrecy leads to,” Souter wrote in an opinion joined by Justices John Paul Stevens, Ruth Bader Ginsburg, Stephen G. Breyer and Anthony Kennedy.

McColgin represented Johnnie Corley, who was arrested on suspicion of robbing a credit union in Norristown, Pa. The FBI agents who arrested him did not take him to court for his initial appearance for nearly 30 hours, during which time they elicited a confession.

In his appeals, Corley argued that the agents violated a federal statute that prohibits police from persisting in questioning a suspect with the goal of securing a confession if doing so would result in an unreasonable delay in taking the suspect for his initial court appearance.

The lower courts had sharply split on the issue. Some held that §3501 of the Omnibus Crime Control and Safe Streets Act of 1968 was designed to completely overturn two Supreme Court rulings — the 1943 ruling in McNabb v. United States and the 1957 ruling in Mallory v. United States — with a rule that said a voluntary confession would always be admissible.

But other courts held that the statute merely modified the so-called McNabb-Mallory rule and still allowed for court review of potentially unfair delay tactics used to secure confessions.

Now the Supreme Court has sided with the latter camp and held that the McNabb-Mallory rule has been modified but remains in effect and must be strictly enforced.

“If the confession occurred before presentment and beyond six hours … the court must decide whether delaying that long was unreasonable or unnecessary under the McNabb-Mallory cases, and if it was, the confession is to be suppressed,” Souter wrote.

In McNabb and Mallory, the Supreme Court held that when federal officers violated an arrested person’s “presentment right” by unnecessarily delaying in taking him before a magistrate, the remedy is that confessions elicited from the arrested person before presentment must be suppressed.

Congress set out to change the McNabb-Mallory rule by providing in §3501 that a confession “shall not be inadmissible solely because of delay.”

But what proved most vexing to the courts was the final section of the statute, which laid out additional conditions, including that the confession was made “within six hours immediately following … arrest or other detention.”

When the 3rd Circuit heard Corley’s appeal, the three-judge panel was split, with two judges saying they would follow the decisions of the 1st, 6th, 8th and 10th circuits, and a dissenting judge saying she would have followed the 2nd, 9th and District of Columbia circuits.

Judge Thomas L. Ambro concluded for the majority that the final section of the law “merely instructs trial courts that the inherently coercive effect of a lengthy delay in presentment is not sufficient, standing alone, to render a confession involuntary” where the delay is less than six hours.

But in dissent, Judge Dolores K. Sloviter said Ambro’s analysis effectively rendered the final section of the statute moot.

“If a confession only had to be voluntary to be admissible despite the delay in presentation to a magistrate judge, there would be no reason for … Section 3501(c),” Sloviter wrote.

Now Souter has sided with Sloviter, finding that the 3rd Circuit majority’s reading of the statute was flawed because it would render the final section superfluous.

Souter rejected the Justice Department’s argument that the first section of the statute unambiguously states that voluntary confessions are admissible and entirely eliminated the McNabb-Mallory rule.

Instead, Souter found that McColgin “has the better argument” when he urged the court to hold that the final section of the statute effectively modified the McNabb-Mallory rule by making it inapplicable to confessions given within the six hours, but keeping the rule alive when the delay in interrogation goes beyond six hours.

“The fundamental problem with the government’s reading of Section 3501 is that it renders Section 3501(c) nonsensical and superfluous,” Souter wrote.

In dissent, Justice Samuel A. Alito Jr. found that there was “nothing ambiguous” about the first section of the law which states that voluntary confessions are admissible.

“Although we normally presume that Congress ‘means in a statute what it says there,’ … the court today concludes that §3501(a) does not mean what it says and that a voluntary confession may be suppressed under the McNabb-Mallory rule,” Alito wrote in an opinion joined by Chief Justice John G. Roberts Jr. and Justices Antonin Scalia and Clarence Thomas.

SUPREME COURT OF THE UNITED STATES

CORLEY v. UNITED STATES

certiorari to the united states court of appeals for the third circuit


No. 07–10441. Argued January 21, 2009—Decided April 6, 2009

McNabb v. United States, 318 U. S. 332 , and Mallory v. United States, 354 U. S. 449 , “generally rende[r] inadmissible confessions made during periods of detention that violat[e] the prompt presentment requirement of [Federal Rule of Criminal Procedure] 5(a).” United States v. Alvarez-Sanchez, 511 U. S. 350 . Rule 5(a), in turn, provides that a “person making an arrest … must take the defendant without unnecessary delay before a magistrate judge … .” Congress enacted 18 U. S. C. §3501 in response to Miranda v. Arizona, 384 U. S. 436 , and some applications of the McNabb-Mallory rule. In an attempt to eliminate Miranda, §3501(a) provides that “a confession … shall be admissible in evidence if it is voluntarily given,” and §3501(b) lists several considerations for courts to address in assessing voluntariness. Subsection (c), which focuses on McNabb-Mallory, provides that “a confession made … by … a defendant … , while … under arrest … , shall not be inadmissible solely because of delay in bringing such person before a magistrate judge … if such confession is found by the trial judge to have been made voluntarily and … within six hours [of arrest]”; it extends that time limit when further delay is “reasonable considering the means of transportation and the distance to … the nearest available [magistrate].”

        Petitioner Corley was arrested for assaulting a federal officer at about 8 a.m. Around 11:45 FBI agents took him to a Philadelphia hospital to treat a minor injury. At 3:30 p.m. he was taken from the hospital to the local FBI office and told that he was a suspect in a bank robbery. Though the office was in the same building as the nearest magistrate judges, the agents did not bring him before a magistrate judge, but questioned him, hoping for a confession. At 5:27 p.m., some 9.5 hours after his arrest, Corley began an oral confession that he robbed the bank. He asked for a break at 6:30 and was held overnight. The interrogation resumed the next morning, ending with his signed written confession. He was finally presented to a Magistrate Judge at 1:30 p.m., 29.5 hours after his arrest, and charged with armed bank robbery and related charges. The District Court denied his motion to suppress his confessions under Rule 5(a) and McNabb-Mallory. It reasoned that the oral confession occurred within §3501(c)’s six-hour window because the time of Corley’s medical treatment should be excluded from the delay. It also found the written confession admissible, explaining there was no unreasonable delay under Rule 5(a) because Corley had requested the break. He was convicted of conspiracy and bank robbery. The Third Circuit affirmed. Relying on Circuit precedent to the effect that §3501 abrogated McNabb-Mallory and replaced it with a pure voluntariness test, it concluded that if a district court found a confession voluntary after considering the points listed in §3501(b), it would be admissible, even if the presentment delay was unreasonable.

Held: Section 3501 modified McNabb-Mallory but did not supplant it. Pp. 8–18.

    (a) The Government claims that because §3501(a) makes a confession “admissible” “if it is voluntarily given,” it entirely eliminates McNabb-Mallory with its bar to admitting even a voluntary confession if given during an unreasonable presentment delay. Corley argues that §3501(a) was only meant to overrule Miranda, and notes that only §3501(c) touches on McNabb-Mallory, making the rule inapplicable to confessions given within six hours of an arrest. He has the better argument. Pp. 8–16.

        (1) The Government’s reading renders §3501(c) nonsensical and superfluous. If subsection (a) really meant that any voluntary confession was admissible, then subsection (c) would add nothing; if a confession was “made voluntarily” it would be admissible, period, and never “inadmissible solely because of delay,” even a delay beyond six hours. The Government’s reading is thus at odds with the basic interpretive canon that “ ‘[a] statute should be construed [to give effect] to all its provisions, so that no part will be inoperative or superfluous, void or insignificant.’ ” Hibbs v. Winn, 542 U. S. 88 . The Government claims that in providing that a confession “shall not be admissible,” Congress meant that a confession “shall not be [involuntary].” Thus read, (c) would specify a bright-line rule applying (a) to cases of delay: it would tell courts that delay alone does not make a confession involuntary unless the delay exceeds six hours. But “ ‘Congress did not write the statute that way.’ ” Russello v. United States, 464 U. S. 16 . The terms “inadmissible” and “involuntary” are not synonymous. Congress used both in (c), and this Court “would not presume to ascribe this difference to a simple mistake in draftsmanship.” Ibid. There is also every reason to believe that Congress used the distinct terms deliberately, specifying two criteria that must be satisfied to prevent a confession from being “inadmissible solely because of delay”: the confession must be “[1] made voluntarily and … [2] within six hours [of arrest].” Moreover, under the McNabb-Mallory rule, “inadmissible” and “involuntary” mean different things. Corley’s position, in contrast, gives effect to both (c) and (a), by reading (a) as overruling Miranda and (c) as qualifying McNabb-Mallory. The Government’s counterargument—that Corley’s reading would also create a conflict, since (a) makes all voluntary confessions admissible while (c) would leave some voluntary confessions inadmissible—falls short. First, (a) is a broad directive while (c) aims only at McNabb-Mallory, and “a more specific statute [is] given precedence over a more general one.” Busic v. United States, 446 U. S. 398 . Second, reading (a) to create a conflict with (c) not only would make (c) superfluous, but would also create conflicts with so many other Rules of Evidence that the subsection cannot possibly be given its literal scope. Pp. 8–12.

        (2) The legislative history strongly favors Corley’s reading. The Government points to nothing in this history supporting its contrary view. Pp. 13–15.

        (3) The Government’s position would leave the Rule 5 presentment requirement without teeth, for if there is no McNabb-Mallory there is no apparent remedy for a presentment delay. The prompt presentment requirement is not just an administrative nicety. It dates back to the common law. Under Rule 5, presentment is the point at which the judge must take several key steps to foreclose Government overreaching: e.g., informing the defendant of the charges against him and giving the defendant a chance to consult with counsel. Without McNabb-Mallory, federal agents would be free to question suspects for extended periods before bringing them out in the open, even though “custodial police interrogation, by its very nature, isolates and pressures the individual,” Dickerson v. United States, 530 U. S. 428 , inducing people to confess to crimes they never committed. Pp. 15–16.

    (b) There is no merit to the Government’s fallback claim that even if §3501 preserved a limited version of McNabb-Mallory, Congress cut it out by enacting Federal Rule of Evidence 402, which provides that “[a]ll relevant evidence is admissible, except as otherwise provided by the Constitution of the United States, by Act of Congress, by these rules, or by other rules prescribed by the Supreme Court … .” The Advisory Committee’s Notes expressly identified McNabb-Mallory as a statutorily authorized rule that would survive Rule 402, and the Government has previously conceded before this Court that Rule 402 preserved McNabb-Mallory. Pp. 16–18.

500 F. 3d 210, vacated and remanded.

    Souter, J., delivered the opinion of the Court, in which Stevens, Kennedy, Ginsburg, and Breyer, JJ., joined. Alito, J., filed a dissenting opinion, in which Roberts, C. J., and Scalia and Thomas, JJ., joined.

A criminal charge may not be dismissed or diverted before trial or motion for directed verdict, without agreement of both the prosecutor and the court.

Monday, April 6th, 2009

A criminal charge may not be dismissed or diverted before trial or motion for directed verdict, without agreement of both the prosecutor and the court. 
 

This rule prevents the court or the prosecutor to “divert” or dismiss a criminal charge without the agreement of both parties.
 
A prosecutor may only dismiss a criminal charge with “leave of the court”. Likewise a court cannot dismiss a criminal charge until after the Commonwealth has presented their case.  “…it was not the province of a trial judge to evaluate evidence in advance in order to decide whether a trial should be held. It was further held that the proper time for such an evaluation is upon motion for a directed verdict.” Com. v. Isham, 98 S.W.3d 59 (Ky., 2003) (Below)
 

The dismissal must be by the concurrent action of both the prosecuting attorney and the judge.” Hoskins v. Maricle (below)
 

 

Hoskins v. Maricle, 150 S.W.3d 1 (Ky., 2004)
Essentially, Appellants claim that since it lies within the prerogative of the executive department by and through the Commonwealth’s attorney to determine what crime to charge and whether to prosecute it, an indictment “belongs” to the prosecutor who may prosecute, amend, or dismiss it at his or her discretion without interposure from the presiding judge. While that is or has been the law in some common law jurisdictions, e.g., In re Confiscation Cases, 74 U.S. (7 Wall.) 454, 457, 19 L.Ed. 196 (1868); Baglioni v. Chief of Police, 421 Mass. 229, 656 N.E.2d 1223, 1225 (1995); State v. Tufts, 56 N.H. 137 (1875), it is not the law of Kentucky.
        Our predecessor court once stated, “An indictment can only be found and presented by a grand jury, and therefore no amendment of an indictment can be allowed.” Commonwealth v. Vanmeter, 8 Ky. Op. 754, 755 (1876).6 However, the law of the Commonwealth since at least 1854 has permitted a Commonwealth’s attorney to dismiss an indictment but only “with the permission of the court.M.C. Johnson, Joshua Harlan & J.W. Stevenson, Code of Practice in Criminal Cases § 241 (eff. July 1, 1854) (emphasis added); see also John D. Carroll,7 Carroll’s Code of Practice in Criminal Cases (“Criminal Code”) § 243 (1st ed. 1888). Similarly,
 (Emphasis added.) That requirement was also contained in KS 1127(4) (1893 Ky. Acts, ch. 182, § 1). Construing these provisions, our predecessor court held Commonwealth v. Davis, 169 Ky. 650, 184 S.W. 1121 (1916):
        [T]he commonwealth attorney cannot dismiss an indictment without permission of the court, and will be permitted to do so only upon reasons deemed sufficient by the court. This necessarily vests in the circuit judge the right and duty to exercise a discretion in sustaining or overruling such a motion.
        Id., 184 S.W. at 1122 (citations omitted).8 Kidd v. Commonwealth, 255 Ky. 498, 74 S.W.2d 944, 947 (1934) (court has discretion to grant or deny Commonwealth’s attorney’s request to dismiss indictment).
        Concomitantly, subject to rare exceptions usually related to a defendant’s claim of a denial of the right to a speedy trial,9 a trial judge has no authority, absent consent of the Commonwealth’s attorney, to dismiss, amend, or file away before trial a prosecution based on a good indictment. See, e.g., Commonwealth v. Allen, Ky., 980 S.W.2d 278, 281 (1998) (dismissal); Commonwealth v. Hicks, Ky., 869 S.W.2d 35, 37 (1994) (dismissal); Allen v. Walter, Ky., 534 S.W.2d 453, 455 (1976) (amendment); Commonwealth v. Huddleston, 283 Ky. 465, 141 S.W.2d 867 (1940) (dismissal); Slater v. Commonwealth, 239 Ky. 620, 40 S.W.2d 389, 391 (1931) (dismissal); Commonwealth
[150 S.W.3d 14]
v. Flynn, 161 Ky. 289, 170 S.W. 617, 618 (1914) (dismissal); Commonwealth v. Hughes, 153 Ky. 34, 154 S.W. 399, 401 (1913) (dismissal); Commonwealth v. Cundiff, 149 Ky. 37, 147 S.W. 767, 768 (1912) (filed away); Commonwealth v. Self, Ky.App., 802 S.W.2d 940, 941-42 (1990) (dismissal); Commonwealth v. McKinney, 594 S.W.2d at 888 (dismissal). Cf. Flynt v. Commonwealth, Ky., 105 S.W.3d 415, 423-24 (2003) (pretrial diversion ordered over prosecutor’s objection); Commonwealth v. Isham, Ky., 98 S.W.3d 59, 61 (2003) (dismissal of criminal complaint by district court); Commonwealth v. Ryan, 5 S.W.3d at 117 (pretrial exclusion of death penalty over prosecutor’s objection).
        In Cundiff, supra, our predecessor court explained the relationship between prosecutor and judge as follows:
        First … where an indictment, for any cause, is to be dismissed or filed away, it can only be done upon motion of the commonwealth’s attorney, or the county attorney who may be acting for him; and, second, that it cannot be done by even the commonwealth’s or county attorney, except the reasons therefore be reduced to writing, and the court, upon having considered the reasons upon which the discontinuance of the prosecution is sought, gives his consent that it may be done. A prosecution by indictment is a litigation in which the state is plaintiff or complainant, and is represented by the commonwealth’s attorney. The judge does not represent the state any more than he does the defendant in the prosecution. His right to control the prosecution goes only to the extent of determining whether or not the indictment is good on demurrer. If he holds it to be a good indictment, he is without power to direct its dismissal.
        Id., 147 S.W. at 768 (emphasis added). See also Slater, 40 S.W.2d at 391 (“The dismissal must be by the concurrent action of both the prosecuting attorney and the judge.”).
        In 1962, the General Assembly repealed the Criminal Code, 1962 Ky. Acts, ch. 234, § 61(2), and replaced it with the Rules of Criminal Procedure. The Act adopting the new rules states, inter alia, as follows:
 The attorney for the Commonwealth, with the permission of the court, may dismiss the indictment, information, complaint or uniform citation prior to the swearing of the jury or, in a non-jury case, prior to the swearing of the first witness.
        RCr 9.64 (emphasis added.) Thus with respect to the subject at issue, the Rule remains the same today as when enacted by the General Assembly in 1962.
        As enacted in 1962, RCr 6.16 read:
        The court may permit an indictment or information to be amended any time before verdict or finding if no additional or different offense is charged and if substantial rights of the defendant are not prejudiced.
        1962 Ky. Acts, ch. 234, § 0, Rule 6.16 (emphasis added).11 Although a second sentence was subsequently added to the Rule by this Court giving a defendant the right to a continuance “[i]f justice requires,” the language of the original legislative enactment remains unchanged. Thus, it is simply inaccurate to say, as does the dissenting opinion, post at 33, that there is no legislative authority requiring judicial approval of a prosecutor’s decision to amend or dismiss an indictment. Chapter 234 of the 1962 Kentucky Acts provides that authority until repealed by the General Assembly.
        The plea agreements rejected in the underlying action include both dismissals and amendments of the indictment, both of which require judicial approval. As with former Criminal Code § 243,
[150 S.W.3d 16]
whether to grant or withhold that approval is a matter of judicial discretion. Of course, that only begs the question; for if RCr 6.16 and RCr 9.64 or, for that matter, provisions of our former statutes and criminal codes, violate the requirement of separation of powers, then they are unconstitutional and afford no basis for our case law to the contrary. Although this is an issue of first impression in Kentucky, it is one that has been addressed and resolved in the federal courts.
        Rule 9.64 resembles Federal Rule of Criminal Procedure (FRCrP) 48(a) which provides, inter alia, that “[t]he government may, with leave of court, dismiss an indictment, information, or complaint.” (Emphasis added.) The accompanying advisory committee notes stated that the adoption of this provision would “change the common-law rule [in federal courts] that the public prosecutor may enter a nolle prosequi in his discretion, without any action by the court,” and “permit the filing of a nolle prosequi only by leave of court … similar to the rule now prevailing in many States.” FRCrP 48(a) advisory committee notes, n.1 (1944) (citation omitted). The original draft submitted by the advisory committee had included a requirement identical to that in our former statutes, KS 27 and 1127, supra, that the prosecution provide a statement of its reasons for dismissal. The Supreme Court struck this provision and replaced it with the “by leave of court” provision. Mark S. Rhodes, Orfield’s Criminal Procedure Under the Federal Rules § 48:11, at 251 (2d ed.1987).
        In the landmark case of United States v. Cowan, 524 F.2d 504 (5th Cir.1975), cert. denied, 425 U.S. 971, 96 S.Ct. 2168, 48 L.Ed.2d 795 (1976), the district court denied a joint motion by the government and the defendant to dismiss the indictment. The Attorney General argued on appeal that the “by leave of court” provision violated the constitutional requirement of separation of powers. Like Section 81 of the Kentucky Constitution, Article II, Section 3, of the United States Constitution vests the power “to take Care that the Laws be faithfully executed” in the executive branch of government; and similar to KRS 15.725(1), 28 U.S.C. § 547(1) vests in the local United States Attorney authority to prosecute all offenses against the United States. Cowan drew a distinction between the power to initiate and control a criminal proceeding and the power to terminate it. Id. at 507-09 (distinguishing United States v. Cox, 342 F.2d 167, 171 (5th Cir.1965)). Citing United States v. Nixon, 418 U.S. at 707, 94 S.Ct. at 3107, for the proposition that “the separate powers were not intended to operate with absolute independence,” Cowan, 524 F.2d at 512, the court held:
        We think the rule should and can be construed to preserve the essential judicial function of protecting the public interest in the evenhanded administration of criminal justice without encroaching on the primary duty of the Executive to take care that the laws are faithfully executed. The resulting balance of power is precisely what the Framers intended…. [T]he phrase “by leave of court” in Rule 48(a) was intended to modify and condition the absolute power of the Executive, consistently with the Framer’s [sic] concept of Separation of Powers, by erecting a check on the abuse of Executive prerogatives…. The rule was not promulgated to shift absolute power from the Executive to the Judicial Branch. Rather, it was intended as a power to check power.
        Id. at 512-13. Thus, the “by leave of court” requirement of Rule 48(a) does not violate the doctrine of separation of powers provided that judicial discretion is properly restrained (as further discussed in Part
[150 S.W.3d 17]
III(2) of this opinion, infra). Id. at 513. The principle established in Cowan comports with our enunciation in Smothers v. Lewis, Ky., 672 S.W.2d 62 (1984), that “a court, once having obtained jurisdiction of a cause of action, has, incidental to its constitutional grant of power, inherent power to do all things reasonably necessary to the administration of justice in the case before it.” Id. at 64. We conclude that the Cowan analysis also applies to the separation of powers required by Section 28 of our Constitution.
        Another reason why RCr 6.16 and RCr 9.64 do not violate the requirement of separation of powers is implicit in the former common law rule cited in Commonwealth v. Vanmeter, supra, that an indictment once issued could not be amended, i.e., the indictment is a charge by the grand jury, not the prosecutor.12 Id., 8 Ky. Op. at 755. Section 12 of our Constitution provides that “[n]o person, for an indictable offense, shall be proceeded against criminally by information….”13
        ”Indictment” is a technical word, peculiar to Anglo Saxon jurisprudence and implies the finding of a grand jury, as does also the word “presentment.” “Information” is a written accusation of a crime, preferred by a public prosecuting officer without the intervention of a grand jury.
        Rice v. Commonwealth, Ky., 288 S.W.2d 635, 637 (1956) (citation omitted).
        We have stated in a different context that “[a] grand jury is a part of the court, and under judicial control, so there can be no doubt that a session of the grand jury is a proceeding in a circuit court.” Bowling v. Sinnette, Ky., 666 S.W.2d 743, 745 (1984); Greenwell v. Commonwealth, Ky., 317 S.W.2d 859, 861 (1958). See also Nelson v. Shake, Ky., 82 S.W.3d 914, 916 (2002). The grand jury is summoned and impaneled by the circuit court, KRS 29A.210(1), RCr 5.02; its witnesses are subpoenaed by the circuit court, RCr 5.06, and their testimony can be compelled by the circuit court’s contempt powers, RCr 5.12; and any indictments by the grand jury are returned to the circuit court. RCr 5.20. Brown v. United States, 359 U.S. 41, 49, 79 S.Ct. 539, 546, 3 L.Ed.2d 609 (1959) (grand jury, though clothed with great independence, remains an appendage of the court, powerless to function without the court’s aid), overruled on other grounds by Harris v. United States, 382 U.S. 162, 86 S.Ct. 352, 15 L.Ed.2d 240 (1965). This does not mean, however, that the court “controls” the grand jury’s proceedings. “The grand jury’s functional independence from the Judicial Branch is evident both in the scope of its power to investigate criminal wrongdoing and in the manner in which that power is exercised.” United States v. Williams, 504 U.S. 36, 48, 112 S.Ct. 1735, 1742, 118 L.Ed.2d 352 (1992).
        Nor does the Commonwealth’s attorney control the grand jury. The Commonwealth’s attorney is the person with “primary responsibility [for] present[ing] evidence” to the grand jury concerning alleged criminal violations. KRS 15.725(1). The Commonwealth’s attorney must, when requested, or may, on personal initiative, attend the grand jury for
[150 S.W.3d 18]
the purpose of questioning witnesses and giving legal advice. RCr 5.14(1). However, the grand jurors may choose to hear no more evidence than that which suffices to convince them that an indictment is warranted, United States v. Williams, supra, at 53, 112 S.Ct. at 1745, and may exclude the Commonwealth’s attorney while they question witnesses, themselves. RCr 5.02. The Commonwealth’s attorney may not be present while the grand jury is deliberating or voting on an indictment. RCr 5.18. Finally, though the Commonwealth’s attorney is required to draft indictments upon request of the grand jury, RCr 5.14(1), the Commonwealth’s attorney does not sign the indictment, RCr 6.06, Miller v. Commonwealth, 270 Ky. 378, 109 S.W.2d 841, 845 (1936),14 and the indictments are returned not to the Commonwealth’s attorney, but to the court. RCr 5.20.
        Nothing in our Constitution, statutes, or rules classifies the grand jury as an arm of the Commonwealth’s attorney. The grand jury is “an investigative body acting independently of either prosecuting attorney or judge.” United States v. Dionisio, 410 U.S. 1, 16, 93 S.Ct. 764, 773, 35 L.Ed.2d 67 (1973) (internal quotation and citation omitted). “The hallmark of the grand jury is its independence from outside influence.” Democratic Party of Ky. v. Graham, Ky., 976 S.W.2d 423, 426 (1998). “[I]t serves the invaluable function in our society of standing between the accuser and the accused, whether the latter be an individual, minority group, or other, to determine whether a charge is founded upon reason or was dictated by an intimidating power or by malice and personal ill will.” Wood v. Georgia, 370 U.S. 375, 390, 82 S.Ct. 1364, 1373, 8 L.Ed.2d 569 (1962).
        Because the grand jury is an agency of neither the court nor the prosecutor, but an independent agency of constitutional origin, it follows, ipso facto, that RCr 6.16 and RCr 9.64, which require the court’s permission to amend or dismiss an indictment, do not violate Section 28 by authorizing the exercise of a power properly belonging to the executive department.
Thus, Judge Maricle did not act outside his jurisdiction in denying the motions to dismiss some counts of the indictment and to amend others.
 

Com. v. Isham, 98 S.W.3d 59 (Ky., 2003)
 

Isham stated  the doctrine that criminal cases may not be dismissed without the agreement of the court and the prosecutor in District Court.  This case is cited in Hoskins v. Maricle, 150 S.W.3d 1 (Ky., 2004) in which the court held that a Commonwealth Attorney could not dismiss a charge without leave of court, and that a court could not dismiss a charge (prior to the presentation of evidence) without agreement of the prosecutor.
 

RCr 9.64 provides that “[t]he attorney for the Commonwealth, with the permission of the court, may dismiss the indictment, information, complaint or uniform citation prior to the swearing of the jury or, in a non jury case, prior to the swearing of the first witness.” In Commonwealth v. Hicks, Ky., 869 S.W.2d 35 (1994), we held that it was not the province of a trial judge to evaluate evidence in advance in order to decide whether a trial should be held. Id. at 37. It was further held that the proper time for such an evaluation is upon motion for a directed verdict. Id.

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The economic downturn is hitting the legal world hard. Pay and jobs are being cut, and even the third year of law school is being trimmed.

Sunday, April 5th, 2009

 

Excerpts from the New York Times- April 4, 2009

 

According to The American Lawyer  big law firms may be hurtling toward “a paradigm-shifting, blood-in-the-suites” future as law firms are closing and associates are being laid off.  The Law Shucks blog has a “layoff tracker,” and it is grim reading.

 

Heller Ehrman, a venerable 500-plus-lawyer New York firm founded in 1890 — has closed.

 

A lot of hard-working lawyers and associates are suddenly finding themselves with six-figure student-loan debts and no source of income. Some law firms are reducing pay for both partners and associates.

 

Years ago, law firm starting salaries were not that different from government or public-interest jobs. But the gap has become a chasm. First-year salaries at top firms are around $160,000, compared with $48,000 to start for state and local prosecutors and $40,000 for legal-services lawyers. New associates often earn more than the judges they appear before.

 

The downturn will probably rein in salaries at the high end. Top firms are already under pressure to lower the $160,000 starting salary; one industry-watcher says it could fall as low as $100,000. And fewer firms will feel the need to pay the top salary.

Lower pay should mean that associates will not need to work the grueling hours many have been forced to. And it will mean less pressure to go into private practice for law graduates who would rather do something else.

 

Between 1990 and 2003, the cost of private law schools rose at nearly three times the rate of consumer prices. The average graduate now leaves with more than $80,000 in debt. In one survey, 66 percent of students said debt prevented them from considering government or public-interest jobs.

 

If the downturn is prolonged, law schools will need to keep tuition and other costs in check so students do not graduate with unmanageable debt.

 

Northwestern law school, in an attempt to hold down tuition costs now offers a two-year law school program.

 

They may also need to pay more attention to preparing students for nonlegal careers. Law graduates have always ended up in business, government, journalism and other fields. Law schools could do more to build these subjects into their coursework.

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Ct. of Appeals panel issues important new case on prosecutorial misconduct. Judges Keller, Dixon and Wine hit a home run for justice on this one.

Saturday, April 4th, 2009

On April 3, 2009 the Court of Appeals in HINES V. COM. OF KENTUCKY  2006-CA-001166   rendered an important  decision that granted a new trial in a case that was originally tried in 2002.  The decision was authored by Judge Michelle Keller and joined in by Judges Dixon and Wine.
This rare reversal due to prosecutorial misconduct demonstrates that occasionally the court will grant relief even seven years later.  This decision demonstrates the confusion that can be caused by inappropriate trial court rulings regarding the Rules of Evidence.  In this case both KRE 106 and KRE 412 were misapplied by the trial court, and the jury was denied the presentation of evidence which may well have raised a reasonable doubt about the defendant’s guilt.
On May 30, 2006, the defendant sought a belated appeal of his conviction. The Ct. of Appeals ordered an evidentiary hearing to be conducted on the issue of whether or not Hines had
waived his right to an appeal. At the close of the hearing, the trial judge judge recommended that the appeal be granted. The Court of Appeals on April 24, 2007 ordered that the appeal should be heard.  The court then reversed the conviction and remanded for a new trial.
We believe that this case is so persuasive and discusses legal doctrines of such importance that the case should have merited being released as a “published” case, but that is not our decision to make.
In this remarkable case, the trial court originally ordered a redaction of the medical records to omit the fact that the alleged rape victim had had prior sexual experiences.  The court suppressed evidence of a pubic hair that was found not to belong to the defendant.  The Court of Appeals found that:
“to allow the misperception created by the redaction to be taken by the jury as evidence of rape, and not of prior consensual sexual experience, does not aid the jury in its search for the truth.”
“the redaction mislead the jury into concluding that an otherwise innocent girl had been raped by him and that no alternate source of the foreign pubic hair or injury to the hymen could be inferred.”
What (the prosecutor)… may not do is consciously deceive. Taken together with the inference that the foreign pubic hair also belonged to Hines, the insinuation of physical evidence of rape due to the status of R.C.’s hymen is a “foul blow”.”
“…under the cumulative error doctrine by which multiple individually harmless errors can be deemed to have the same deleterious effect as one prejudicial error we find that the combination of the bolstering evidence, the medical records, and the prosecutor’s statement during closing argument undermines our confidence in the fairness of the trial Hines received.”
the prosecutor may draw all reasonable inferences from the evidence. Herein, the prosecutor knew full well that the reason R.C.’s hymen was not intact likely had nothing to do with the alleged rape.”
“Standing alone, the preceding errors may not lead to a reversal in every instance, however, in this case, “they cumulatively operate to deprive the defendant of fundamental fairness. Errors that might not be so prejudicial as to amount to a deprivation of due process when considered alone, may cumulatively produce a trial setting that is fundamentally unfair.” Matlock v. Rose, 731 F.2d 1236, 1244 (6th Cir. 1984).”
“In his closing argument, the prosecutor requested of the jury “I ask you to ask yourself why he would not give Officer Hammond a sample of his hair to compare it to.”
“In this case, the prosecution was attempting to explain away its failure to test particularly relevant evidence, by impermissibly shifting the burden of this failure to the accused. This is not the legitimate governmental purpose of rebuttal and impeachment referenced in Coulthard, supra”.
“The accumulation of those errors undermines the overall fairness of the proceedings; therefore, we reverse the circuit court’s judgment and remand this matter for a new trial.”
See:
Rule 106 Remainder of or related writings or recorded statements
When a writing or recorded statement or part thereof is introduced by a party, an adverse party may require the introduction at that time of any other part or any other writing or recorded statement which ought in fairness to be considered contemporaneously with it.
Rule 412 Rape and similar cases — Admissibility of victim’s character and behavior
This rule excludes comments on victim’s prior sexual history, but an exception allows introduction of such evidence in criminal cases where:   (b)(1) (A) evidence of specific instances of sexual behavior by the alleged victim (is) offered to prove that a person other than the accused was the source of semen, injury, or other physical evidence;
 

 

Fen Phen attorneys Shirley Cunningham Jr., and William Gallion were convicted by a Federal jury in Franklin County on all counts.

Friday, April 3rd, 2009

The jury’s guilty verdict came after two days of deliberations and after hearing more than five weeks of testimony in the trial that began Feb. 17. The two men could spend decades in prison, and may also have to repay their clients millions of dollars. 

The seven women and five men on the jury are still trying to determine whether Gallion and Cunningham, two former Lexington-area attorneys, should have to repay $94 million to their former clients. Jurors will resume deliberations on that charge, a forfeiture count, on Tuesday. 

Lawyers for both men said Friday that the two men will likely appeal the guilty conviction. 


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Fen Phen jury deliberates for seven hours…back to work Friday morning.

Thursday, April 2nd, 2009

A federal jury in Frankfort began considering the fate of William Gallion and Shirley Cunningham Jr. on Thursday morning in the 2nd. trial for the Fen Phen defendants .  They recessed after deliberating for seven hours, and will continue on Friday.
The 12-member panel — seven women and five men — asked for an easel, markers and paper early Thursday. The jury had no other questions or requests the rest of the day.
The trial in the current Fen Phen case has so far taken more than seven weeks.
 

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Attorney General Eric Holder’s virtually unprecedented statement on Government’s Motion to Dismiss conviction in United States v. Sen. Theodore F. Stevens.

Wednesday, April 1st, 2009

Attorney General Eric Holder’s virtually unprecedented statement on Government’s Motion to Dismiss conviction in United States v. Sen. Theodore F. Stevens.   April 1, 2009
 “In connection with the post-trial litigation in United States v. Theodore F. Stevens, the Department of Justice has conducted a review of the case, including an examination of the extent of the disclosures provided to the defendant. After careful review, I have concluded that certain information should have been provided to the defense for use at trial. In light of this conclusion, and in consideration of the totality of the circumstances of this particular case, I have determined that it is in the interest of justice to dismiss the indictment and not proceed with a new trial.

“The Department’s Office of Professional Responsibility will conduct a thorough review of the prosecution of this matter. This does not mean or imply that any determination has been made about the conduct of those attorneys who handled the investigation and trial of this case.

“The Department of Justice must always ensure that any case in which it is involved is handled fairly and consistent with its commitment to justice. Under oftentimes trying conditions, the attorneys who serve in this Department live up to those principles on a daily basis. I am proud of them and of the work they do for the American people.”

 

The following motion to vacate Sen. Steven’s conviction was filed by the Justice Department:
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
UNITED STATES OF AMERICA ))
V. )
) No. 08-231 (EGS)

THEODORE F. STEVENS, ))
Defendant. )
 

MOTION OF THE UNITED STATES TO SET ASIDE THE VERDICT
AND DISMISS THE INDICTMENT WITH PREJUDICE
 

In February 2009, the Acting Assistant Attorney General for the Criminal Division

appointed undersigned counsel to conduct the post-trial litigation in this matter. In preparing to respond to defendant Theodore Stevens’ various motions and in preparation for a possible evidentiary hearing, undersigned counsel began collecting and reviewing documents and interviewing potential witnesses.

 

As the Court is aware, the Government has voluntarily provided to the defense documents and summaries of witness interviews.

 

The Government recently discovered that a witness interview of Bill Allen took place on

April 15, 2008. While no memorandum of interview or agent notes exist for this interview, notes taken by two prosecutors who participated in the April 15 interview reflect that Bill Allen was asked about a note dated October 6, 2002, that was sent from the defendant to Bill Allen. The note was introduced at trial as Government Exhibit 495 and was referred to as the “Torricelli note.”

 

The notes of the April 15 interview indicate that Bill Allen said, among other things, in substance and in part, that he (Bill Allen) did not recall talking to Bob Persons regarding giving a bill to the defendant. This statement by Allen during the April 15 interview was inconsistent with Allen’s recollection at trial, where he described a conversation with Persons about the Torricelli note. Iii addition, the April 15 interview notes indicate that Allen estimated that if his workers had performed efficiently, the fair market value of the work his corporation performed on defendant’s Girdwood chalet would have been $80,000. Upon the discovery of the interview notes last week, the Government immediately provided a copy to defense counsel.

 

Defendant Stevens was not informed prior to or during trial of the statements by Bill

Allen on April 15, 2008. This information could have been used by the defendant to crossexamine Bill Allen and in arguments to the jury. The Government also acknowledges that the Government’s Opposition to Defendant’s Motion for a New Trial provided an account of the Government’s interviews of Bill Allen that is inaccurate. See Opposition at 42-43 (Dkt. No. 269).

 

Given the facts of this particular case, the Government believes that granting a new trial

is in the interest of justice. See Fed. R. Crim. P. 33(a). The Government has further determined that, based on the totality of circumstances and in the interest of justice, it will not seek a new verdict and dismiss the indictment with prejudice.

 

Further, as the Court is aware, certain matters in this case previously have been referred

to the Office of Professional Responsibility of the Department of Justice. The Government has supplemented the referral to include the facts concerning the April 1 5th Bill Allen interview.

 

Once the inquiry into this matter is completed by the Office of Professional Responsibility, the Government will share the findings of that inquiry with the Court.

 

Respectfully submitted,

PAULM. O’BRIEN

Chief, Narcotic and Dangerous Drug Section

Criminal Division

U.S. Department of Justice

1400 New York Ave. NW

Washington, D.C. 20530

Tel: 202-514-0169

Fax: 202-514-6112

WILLIAMJ. STUCKWISCH (Bar No. 457278)

Senior Trial Attorney, Fraud Section

 

Comments about Prosecutorial Misconduct:
David Alan Sklansky is professor of law at the University of California, Berkeley, and faculty chair of the Berkeley Center for Criminal Justice.

In the seven years I spent as an Assistant United States Attorney, I never saw prosecutorial misconduct as serious as what has come to light in the Stevens case. I hope and believe that disclosure violations on this scale are uncommon. But it is easy to understand how they arise.

American prosecutors play two roles. On the one hand they are officers of the court, charged with seeing to it that the guilty are convicted and the innocent acquitted. On the other hand, prosecutors are participants in an adversary system of adjudication. They are expected to field one side of a courtroom battle. If they lack zeal, the system fails — particularly when they face a defendant, like former Senator Stevens, fortunate to have talented and well-resourced attorneys of his own.

Prosecutors can come to believe too strongly that justice requires the defendant’s conviction.

These two roles can pull prosecutors in opposite directions. The habits of combat we encourage in prosecutors, and that they need if they are to succeed in hard-fought cases, can tempt them to be less than painstaking about their broader set of obligations — the requirements imposed on them, for example, to disclose all potentially exculpatory information to the defense.

Prosecutors can come to believe too strongly that justice requires the defendant’s conviction. Once that happens, it is easy for them to convince themselves that, say, a bit of awkward information isn’t “really” exculpatory, or that it shouldn’t really count as “evidence,” or that, for some other reason, it shouldn’t be disclosed.

The danger arises not only because of the two roles prosecutors play, but because they shuttle back and forth between the courtroom and the world of law enforcement. In one they are constantly reminded of their status as officers of the court; in the other, they work closely with police officers and government investigators, whom they often admire.

The divided roles and divided allegiances of prosecutors create constant pressures to step over the line. Good prosecutors work to resist those pressures. Strong judicial oversight helps, too. But it isn’t feasible for courts to review every decision that prosecutors make. To a large extent, we rely on prosecutors to keep themselves in line. That’s why Attorney General Holder’s principled step is so important. It reminds the prosecutors who work for him that resisting the pressures to cut corners is part of the job.



The Need for Constant Training

Barry Coburn, a lawyer, is a former federal prosecutor.

Prosecutors are people. They are subject to the same human frailties as the rest of us, including, on occasion, poor judgment, inattention, allowing a sense of ethics to be overwhelmed by the desire to win and, occasionally, sheer vindictiveness. It is hard to estimate the frequency with which this occurs, but it is rare to go through trial and believe that a prosecutor’s performance has been perfect.

By the same token, of course, it is rare for a defense attorney’s performance to be perfect. Or for a judge to perform perfectly. Or anyone else in the context of a trial, or, perhaps, in any other context.

Prosecutors should be encouraged to measure their conduct by an ethical yardstick as well as whether they win or lose.

Saying this is not in any way to excuse a prosecutor for failing to disclose exculpatory material to the defense. Doing so is mandated by the Constitution, and failing to do so is a serious ethical infraction.

This obligation is a fundamental aspect of due process in the criminal context. There may be a strong temptation for a prosecutor to withhold such material, after devoting hundreds of hours to trial preparation and believing in the fundamental merit of a prosecution. But failing to do so is to subvert the process itself and the integrity of the very endeavor in which the prosecutor is engaged.

The imposition of sanctions is one way to prevent this kind of misconduct. Sanctions can range from dismissing the prosecution, as has now happened in the case of former Senator Ted Stevens, or internal discipline, including firing. But perhaps the best preventive measure is careful, intensive and continuous training of prosecutors to sensitize them to this issue and encourage them to measure their success by an ethical yardstick as well as whether they win or lose. As the courts often have observed, a prosecutor’s job, after all, is not just to win, but to do justice.



No Detection, No Deterrence

Stephen Gillers, a professor at New York University School of Law, is an expert in legal ethics.

Prosecutorial misconduct occupies a dark and poorly policed corner of our criminal justice apparatus. Ted Stevens had the financial and legal resources to mount a persuasive claim of prosecutorial misconduct. This is rare. And on the infrequent occasions when courts do overturn convictions because prosecutors failed to hand over exculpatory evidence, as the Constitution requires, searches of lawyer disciplinary records nationwide reveal no action thereafter taken against them.

There is no real threat of discipline, and little risk even of detection for misconduct.

A lawyer who violates his ethical and legal duties to win a conviction debases his office and the justice system and should be severely punished. But with no real threat of discipline, and little risk even of detection, the only remaining safeguard is rigorous training and supervision. Most prosecutors’ offices get low grades even for that.

This is why Attorney General Eric Holder’s decision is so important. It sets an example not only for Justice Department lawyers but also for the thousands of state and local prosecutors’ offices that bring the vast majority of criminal cases. Mr. Holder’s action, as refreshing as it is uncommon, should be read as zero tolerance for misconduct in his department. The trial judge, Emmet Sullivan, should also be commended for insuring the thorough investigation that led to the Holder decision. Maybe things will begin to change now. I hope so.

 


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Speaker of the House Greg Stumbo blames Senate GOP for failure of Ky. Speedway Incentive legislation

Wednesday, April 1st, 2009

 

Speedway Needs Kentucky Workers
By Speaker of the House Greg Stumbo                                   April 1, 2009
            For those who think of fast cars instead of the beach when they hear the word “Daytona,” one item in particular stood out during the recent legislative session: A tax incentive package to help Kentucky Speedway at Sparta land a NASCAR race.
            Given our deep fan base, Kentucky should have Sparta the way Tennessee has Bristol, Alabama has Talladega, and North Carolina has Charlotte.  No other state has a deeper appreciation of horsepower than ours!
            To make this dream possible, Governor Beshear and key members of the General Assembly put their support behind legislation that promised tax incentives to help pay for needed expansion at the track – but only if the track landed a prestigious NASCAR Sprint Cup race.  Since the track’s new owner already oversees 11 of these races, one of which could easily be shifted here, that hurdle was expected to be as easy as a victory lap.
            The proposal quickly drew unanimous support in the Kentucky House of Representatives.  With every incentive dollar flowing from the race’s economic impact, which studies have shown can reach hundreds of millions of dollars annually, we had nothing to lose and everything to gain.
            As fans of racing know, however, a yellow flag can come up without warning.
            It happened this legislative session when the House and Senate found themselves on opposite sides of what should be a minor issue.  The problem: Should Kentucky workers be hired to work on the track?
            We in the House believe they should.  Your tax dollars should only be used to help workers and families, not out-of-state corporations.  The House proposal rewards Kentucky Speedway for every Kentuckian hired.  If half of the jobs go to Kentucky workers, half of the tax incentive money goes to Kentucky Speedway.  Simple, right?
Unfortunately, the House’s protection of Kentucky jobs was eliminated from the bill sent to us on the very last day for action.  We decided to hold out for Kentucky workers, rather than cave in to last-minute pressure.
            At the end of the day, I believe the legislature will agree that we need to put Kentucky workers first, and I want you to know the House is committed to nothing less.  Despite these speed bumps, Kentucky is still on track to be home to a NASCAR Sprint Cup race.  We will all cheer together when that checkered flag flies.
 

 

Our LawReader Science Editor, Wayne Billingsley of Billingsley Aerospace reports historic low levels of Sun spot activity. Could this have affected the stock market?

Wednesday, April 1st, 2009

April 1, 2009: The sunspot cycle is behaving a little like the stock market. Just when you think it has hit bottom, it goes even lower.  

2008 was a bear. There were no sunspots observed on 266 of the year’s 366 days (73%). To find a year with more blank suns, you have to go all the way back to 1913, which had 311 spotless days: plot. Prompted by these numbers, some observers suggested that the solar cycle had hit bottom in 2008. 

Maybe not. Sunspot counts for 2009 have dropped even lower. As of March 31st, there were no sunspots on 78 of the year’s 90 days (87%).  

It adds up to one inescapable conclusion: “We’re experiencing a very deep solar minimum,” says solar physicist Dean Pesnell of the Goddard Space Flight Center.  

“This is the quietest sun we’ve seen in almost a century,” agrees sunspot expert David Hathaway of the Marshall Space Flight Center. 

Above: The sunspot cycle from 1995 to the present. The jagged curve traces actual sunspot counts. Smooth curves are fits to the data and one forecaster’s predictions of future activity. Credit: David Hathaway, NASA/MSFC. [more] 

Quiet suns come along every 11 years or so. It’s a natural part of the sunspot cycle, discovered by German astronomer Heinrich Schwabe in the mid-1800s. Sunspots are planet-sized islands of magnetism on the surface of the sun; they are sources of solar flares, coronal mass ejections and intense UV radiation. Plotting sunspot counts, Schwabe saw that peaks of solar activity were always followed by valleys of relative calm—a clockwork pattern that has held true for more than 200 years: plot. 

The current solar minimum is part of that pattern. In fact, it’s right on time. “We’re due for a bit of quiet—and here it is,” says Pesnell. 

But is it supposed to be this quiet? In 2008, the sun set the following records:  

A 50-year low in solar wind pressure: Measurements by the Ulysses spacecraft reveal a 20% drop in solar wind pressure since the mid-1990s—the lowest point since such measurements began in the 1960s. The solar wind helps keep galactic cosmic rays out of the inner solar system. With the solar wind flagging, more cosmic rays are permitted to enter, resulting in increased health hazards for astronauts. Weaker solar wind also means fewer geomagnetic storms and auroras on Earth. 

A 12-year low in solar “irradiance”: Careful measurements by several NASA spacecraft show that the sun’s brightness has dropped by 0.02% at visible wavelengths and a whopping 6% at extreme UV wavelengths since the solar minimum of 1996. These changes are not enough to reverse the course of global warming, but there are some other, noticeable side-effects: Earth’s upper atmosphere is heated less by the sun and it is therefore less “puffed up.” Satellites in low Earth orbit experience less atmospheric drag, extending their operational lifetimes. That’s the good news. Unfortunately, space junk also remains longer in Earth orbit, increasing hazards to spacecraft and satellites. 

April 1, 2009: The sunspot cycle is behaving a little like the stock market. Just when you think it has hit bottom, it goes even lower.  

2008 was a bear. There were no sunspots observed on 266 of the year’s 366 days (73%). To find a year with more blank suns, you have to go all the way back to 1913, which had 311 spotless days: plot. Prompted by these numbers, some observers suggested that the solar cycle had hit bottom in 2008. 

Maybe not. Sunspot counts for 2009 have dropped even lower. As of March 31st, there were no sunspots on 78 of the year’s 90 days (87%).  

It adds up to one inescapable conclusion: “We’re experiencing a very deep solar minimum,” says solar physicist Dean Pesnell of the Goddard Space Flight Center.  

“This is the quietest sun we’ve seen in almost a century,” agrees sunspot expert David Hathaway of the Marshall Space Flight Center. 

Quiet suns come along every 11 years or so. It’s a natural part of the sunspot cycle, discovered by German astronomer Heinrich Schwabe in the mid-1800s. Sunspots are planet-sized islands of magnetism on the surface of the sun; they are sources of solar flares, coronal mass ejections and intense UV radiation. Plotting sunspot counts, Schwabe saw that peaks of solar activity were always followed by valleys of relative calm—a clockwork pattern that has held true for more than 200 years: plot. 

The current solar minimum is part of that pattern. In fact, it’s right on time. “We’re due for a bit of quiet—and here it is,” says Pesnell. 

But is it supposed to be this quiet? In 2008, the sun set the following records:  

A 50-year low in solar wind pressure: Measurements by the Ulysses spacecraft reveal a 20% drop in solar wind pressure since the mid-1990s—the lowest point since such measurements began in the 1960s. The solar wind helps keep galactic cosmic rays out of the inner solar system. With the solar wind flagging, more cosmic rays are permitted to enter, resulting in increased health hazards for astronauts. Weaker solar wind also means fewer geomagnetic storms and auroras on Earth. 

A 12-year low in solar “irradiance”: Careful measurements by several NASA spacecraft show that the sun’s brightness has dropped by 0.02% at visible wavelengths and a whopping 6% at extreme UV wavelengths since the solar minimum of 1996. These changes are not enough to reverse the course of global warming, but there are some other, noticeable side-effects: Earth’s upper atmosphere is heated less by the sun and it is therefore less “puffed up.” Satellites in low Earth orbit experience less atmospheric drag, extending their operational lifetimes. That’s the good news. Unfortunately, space junk also remains longer in Earth orbit, increasing hazards to spacecraft and satellites. 

A 55-year low in solar radio emissions: After World War II, astronomers began keeping records of the sun’s brightness at radio wavelengths. Records of 10.7 cm flux extend back all the way to the early 1950s. Radio telescopes are now recording the dimmest “radio sun” since 1955: plot. Some researchers believe that the lessening of radio emissions is an indication of weakness in the sun’s global magnetic field. No one is certain, however, because the source of these long-monitored radio emissions is not fully understood. 

All these lows have sparked a debate about whether the ongoing minimum is “weird”, “extreme” or just an overdue “market correction” following a string of unusually intense solar maxima.  

“Since the Space Age began in the 1950s, solar activity has been generally high,” notes Hathaway. “Five of the ten most intense solar cycles on record have occurred in the last 50 years. We’re just not used to this kind of deep calm.” 

Deep calm was fairly common a hundred years ago. The solar minima of 1901 and 1913, for instance, were even longer than the one we’re experiencing now. To match those minima in terms of depth and longevity, the current minimum will have to last at least another year. 

In a way, the calm is exciting, says Pesnell. “For the first time in history, we’re getting to see what a deep solar minimum is really like.” A fleet of spacecraft including the Solar and Heliospheric Observatory (SOHO), the twin STEREO probes, the five THEMIS probes, ACE, Wind, TRACE, AIM, TIMED, Geotail and others are studying the sun and its effects on Earth 24/7 using technology that didn’t exist 100 years ago. Their measurements of solar wind, cosmic rays, irradiance and magnetic fields show that solar minimum is much more interesting and profound than anyone expected. 

Above: An artist’s concept of NASA’s Solar Dynamics Observatory. Bristling with advanced sensors, “SDO” is slated to launch later this year–perfect timing to study the ongoing solar minimum. [more] 

Modern technology cannot, however, predict what comes next. Competing models by dozens of top solar physicists disagree, sometimes sharply, on when this solar minimum will end and how big the next solar maximum will be. Pesnell has surveyed the scientific literature and prepared a “piano plot” showing the range of predictions. The great uncertainty stems from one simple fact: No one fully understands the underlying physics of the sunspot cycle. 

Pesnell believes sunspot counts will pick up again soon, “possibly by the end of the year,” to be followed by a solar maximum of below-average intensity in 2012 or 2013. 

But like other forecasters, he knows he could be wrong. Bull or bear? Stay tuned for updates.