Archive for May, 2009

Court of Appeals Rules in Russell County Clerk’s Case that Incumbent Clerk Need Not Nourish a Viper in the Nest and May fire Deputy Clerk who runs against Her

Friday, May 15th, 2009


The court of appeals issued an important decision in a Russell County case holding that a Deputy County Clerk had no constitutional right to declare her candidacy to run against her boss, the incumbent Circuit Clerk, and retain her job.


Deputy Russell County Clerk Stacie Cook sued Russell County Clerk Lisha Popplewell and Russell County alleging violation of her rights to become a candidate and retain her job.


The decision was written by Judge Buckingham and joined in by Judge Taylor. Judge Stumbo issued a concurring opinion.


Judge Buckingham wrote:


“…the U.S. Supreme Court “has never recognized a fundamental right to express one’s political views through candidacy.” 


“…the “First Amendment does not require that an official in [the incumbent clerk’s] position nourish the viper in the nest.”


The full text of this case can be read at: 2008-CA-001249


Under this reasoning Deputy Sheriff’s and Deputy Circuit Clerk’s will likewise be affected by this ruling which was ordered to be published.

William Kathman & Jay Vaughn provide useful update for Motor Vehicle Insurance Law

Friday, May 15th, 2009

LawReader Users Hon. William Kathman and Hon. Jay Vaughn of Busald, Funk & Zevely of Florence have written a detailed update of the law relating to Motor Vehicle Insurance Law, updated for 2009.


This useful article full of citations can be read at:  MOTOR VEHICLE INSURANCE LAW UPDATE


This will be accessible for non-members for one week, and after that you will need to be a LawReader subscriber to access this information.  You can sign up on-line

Detroit Judge Prosecuted for Trial Error – Perjured Testimony allowed to protect informant

Friday, May 15th, 2009




Felony charges against former Wayne County Circuit Judge Mary Waterstone should be dismissed because it is unfair to criminalize rulings, even erroneous ones, made during a trial, her attorneys argued in a written pleading filed Monday.

Waterstone’s attorneys also want to disqualify Michigan Attorney General Mike Cox from handling the case that grew out of a troubled Inkster cocaine bust and trial that was marked by false testimony. Cox has a conflict of interest because his office defended Waterstone in a federal civil lawsuit connected to the 2005 cocaine case, according to the pleading.

In the pending criminal case, Cox wrongly charged Waterstone for “erroneous ruling made by a trial judge in the midst of a highly charged criminal case,” the judge’s lawyers, Juan Mateo and Gerald Evelyn, wrote in their pleadings.

Waterstone is charged with four counts of official misconduct for allowing false testimony in the trial of Alexander Aceval and Ricardo Pena, who were charged with possession of 47 kilos of cocaine. The trial prosecutor Karen Plants and Inkster police officers Robert McArthur and Sgt. Scott Rechtzigel are charged with conspiracy to commit perjury for covering up the identity of the police informant in the case.

Waterstone was told privately of the false statements and allowed them to go uncorrected. According to a record of those secret meetings, she said she was protecting the informant from possible retaliation.

Cox’s spokesman John Sellek said: “When a judge knowingly allows perjury to occur it is criminal misconduct.” Sellek also said there is no conflict because the civil case and the pending criminal charges were handled by two separate divisions

NCAA Ignores Court Ruling. Continues to Forbid College Athletes from Hiring an Attorney

Thursday, May 14th, 2009

ESPN – An Ohio Judge struck down an NCAA bylaw prohibiting college baseball players from using legal advisors to negotiate with major league baseball teams has ruled that the NCAA appears to be in contempt of that ruling.

Judge Tygh Tone ordered the NCAA to show cause within seven days why it should not be held in contempt.

Oklahoma State pitcher Andrew Oliver was ruled ineligible by the NCAA last spring because it said that a lawyer he had hired listened in on contract negotiations after he was drafted out of high school by Minnesota in 2006.

Judge Tone issued a temporary restraining order against the NCAA last August of 2008, and reinstated Oliver in February when he voided the NCAA rule. That cleared the way athletes to use attorneys as representatives without forfeiting their amateur status.

On May 6, the judge wrote that, “contrary the [the NCAA's] rhetoric, the February entry did not presume to void an NCAA rule, it did void an NCAA rule.”

From the NCAA memo

The NCAA memo includes a list of questions and answers about the NCAA’s rules on the use of advisors, including the following:

8. Is my advisor allowed to speak with teams on my behalf?
NO. You cannot allow your advisor to have conversations with MLB clubs on your behalf. This means This means that your advisor cannot discuss your draft status with any club. Your advisor cannot discuss your signability with any club. You advisor cannot arrange tryouts for you with any club. Your advisor cannot speak with any club on your behalf for any reason. Also, keep in mind that it is likely that you will have to accept responsibility for the actions your advisor takes on your behalf. It is not sufficient to simply state that you did not know what your advisor had done for you.

On May 11, the NCAA sent a memo to high school players that indicated it intended to appeal the February ruling. The memo also indicated that, while appealing, the NCAA intended to continue enforcing the voided bylaw, saying that “much of the reporting on this subject has been inaccurate,” and that “the NCAA believes the court’s ruling is limited in scope.”

Rick Johnson, the attorney for Oliver in the original lawsuit, said of the May 11 memo: “They’re directly violating the judge’s order. There was no mistake from [Feb. 12] forward what the judge’s order meant.”

Johnson, who filed a motion pointed out that the NCAA acknowledged that Judge Tone’s Feb. 12 ruling was global in scope, using the following text in their appeal:

“The sheer scope of the [T]rial Court’s order is no less than breathtaking. In its effort to grant [the] Plaintiff the ability to participate in a handful of additional college baseball games, the [T]rial [C]ourt substituted its subjective judgment for that of the [Defendant] NCAA’s membership and, with a stroke of the pen, “voided” long-standing, fundamental rules across all sports and all divisions of a national, private organization.

“Indeed, it is important to note that the [T]rial [C]ourt’s ruling was not confined to [the] Plaintiff’s individual sport, or the NCAA division of which OSU is a member. Rather, its broad brush extends to schools large and small in Divisions I, II and III, and to hundreds of thousands of student-athletes who participate in every NCAA-sanctioned sport.”

An NCAA spokesman issued a written statement to, saying, in part: “The NCAA has deep respect for the integrity of all court orders. We have obeyed and will continue to obey all court orders issued relative to this case. The NCAA has an obligation to keep its members informed.”

The spokesman declined further comment.

“They think that they are not subject to congress state legislatures or the courts, they believe they are an entity unto themselves,” Johnson said. “It is an amazing level of arrogance unmatched by anything I’ve ever seen.”

The use of advisers is common for amateur baseball prospects who are likely to be selected in the top-five rounds, including high school players who may attend college rather than sign with the team that drafts them.

The bylaw that said the players would forfeit their amateur eligibility if the advisers negotiated on their behalf with major league clubs was seldom enforced before the former agent for Oliver reported a violation after Oliver terminated their relationship.

The NCAA has seven days to respond to the Judge’s demand for all communications relating to the May 11 memo and to prior comments to the New York Times regarding their opinion that the Feb. 12 ruling was limited.

The judge will hold an evidentiary hearing in the Erie County Court of Common Pleas on May 27. The penalty phase of the original trial is still scheduled for October


New York Ct. of Appeals Strikes Down GPS Tracking Without Warrant

Wednesday, May 13th, 2009

In a 4-to-3 ruling, the New York State Court of Appeals ruled on Tuesday that the State Police violated a criminal suspect’s rights under the State Constitution when it placed a GPS tracking device inside the bumper of his van without obtaining a warrant.

The police had used the device to monitor the movements of the suspect, Scott C. Weaver, for more than two months. But the court ordered the evidence gathered from the device suppressed and ordered a new trial for Mr. Weaver.

In three written opinions, the judges on the court debated the constitutional issues raised by the growing use of global positioning system technology as a tool of surveillance. The case could set an important precedent for state and local police agencies.

In the early morning on Dec. 21, 2005, a State Police investigator crawled under Mr. Weaver’s van, parked on the street, and placed a GPS tracking device, known as a Q-ball, inside the bumper. It remained in place for 65 days, constantly monitoring the location of the van.

Chief Judge Jonathan Lippman, writing for the majority,  cited a 1983 United States Supreme Court case in which government agents had placed a beeper in a five-gallon drum of chloroform to track the container’s movements. The beeper was used to help the agents keep visual track of the vehicle carrying the container. In that case, the court found that the driver of the vehicle had no reasonable expectation of privacy since the van’s movements were visible for all to see. Judge Lippman distinguished the Knotts case from Mr. Weaver’s situation this way:

“Here, we are not presented with the use of a mere beeper to facilitate visual surveillance during a single trip. GPS is a vastly different and exponentially more sophisticated and powerful technology that is easily and cheaply deployed and has virtually unlimited and remarkably precise tracking capability. With the addition of new GPS satellites, the technology is rapidly improving so that any person or object, such as a car, may be tracked with uncanny accuracy to virtually any interior or exterior location, at any time and regardless of atmospheric conditions. Constant, relentless tracking of anything is now not merely possible but entirely practicable, indeed much more practicable than the surveillance conducted in Knotts. GPS is not a mere enhancement of human sensory capacity, it facilitates a new technological perception of the world in which the situation of any object may be followed and exhaustively recorded over, in most cases, a practically unlimited period. The potential for a similar capture of information or “seeing” by law enforcement would require, at a minimum, millions of additional police officers and cameras on every street lamp.”

The judge also raised the specter of GPS being used to penetrate every part of a person’s private life:

One need only consider what the police may learn, practically effortlessly, from planting a single device. The whole of a person’s progress through the world, into both public and private spatial spheres, can be charted and recorded over lengthy periods possibly limited only by the need to change the transmitting unit’s batteries. Disclosed in the data retrieved from the transmitting unit, nearly instantaneously with the press of a button on the highly portable receiving unit, will be trips the indisputably private nature of which takes little imagination to conjure: trips to the psychiatrist, the plastic surgeon, the abortion clinic, the AIDS treatment center, the strip club, the criminal defense attorney, the by-the-hour motel, the union meeting, the mosque, synagogue or church, the gay bar and on and on. What the technology yields and records with breathtaking quality and quantity, is a highly detailed profile, not simply of where we go, but by easy inference, of our associations — political, religious, amicable and amorous, to name only a few — and of the pattern of our professional and avocational pursuits. When multiple GPS devices are utilized, even more precisely resolved inferences about our activities are possible. And, with GPS becoming an increasingly routine feature in cars and cell phones, it will be possible to tell from the technology with ever increasing precision who we are and are not with, when we are and are not with them, and what we do and do not carry on our persons — to mention just a few of the highly feasible empirical configurations.

The judge added the ruling had no bearing on federal cases, because the United States Supreme Court has not ruled upon whether the use of GPS by the state in criminal investigations constitutes a search under the Fourth Amendment, and most federal appellate courts have not addressed the issue.

“In light of the unsettled state of federal law on the issue, we premise our ruling on our State Constitution alone,” Judge Lippman wrote, citing similar decisions in Washington State and Oregon. He was joined by Judges Carmen Beauchamp Ciparick, Eugene F. Pigott Jr. and Theodore T. Jones.

In a dissenting opinion, Judge Robert S. Smith acknowledged the newness and greater efficiency of GPS devices but defended the legitimacy of the search. “The proposition that some devices are too modern and sophisticated to be used freely in police investigation is not a defensible rule of constitutional law,” he wrote.

Judge Smith wrote that while “I do not care for the idea of a police officer — or anyone else — sneaking under someone’s car in the middle of the night to attach a tracking device,” the State Police only violated Mr. Weaver’s property rights, not his right to privacy.

And in another dissenting opinion, Judge Susan P. Read argued that it should be up to the Legislature, not the courts, to restrict the use of GPS devices by law enforcement, and she argued that the use of GPS was not legally distinct from traditional physical surveillance.

Judge Read also concurred with Judge Smith’s dissenting opinion, and Judge Victoria A. Graffeo concurred with both dissenting opinions.

Sign Up Online for KBA Law Update Program this fall

Wednesday, May 13th, 2009

You may register online for this year’s KBA regional Law Update CLE program by following this link, or you may mail your registration card to us.  You may also download the PDF Registration Form and fax it to (502) 564-3225 or mail it to us at Kentucky Bar Association, 514 West Main Street, Frankfort, Kentucky 40601. 

Members who have chosen to “Go Green with the KBA” (receiving CLE materials via email) will no longer receive the printed reminder to register for the Kentucky Law Update. 

Please review the 2009 Agenda before proceeding to register online.  You can find the Dates & Locations, as well as the Agenda on our website under CLE\Kentucky Law Update.  When you register you will be asked to pick between Morning Track I and Morning Track II, as well as Afternoon Track I and Afternoon Track II.   The titles for the individual programs will not show up as this year the tracks are comprised of “Hot Topics” and therefore could not be categorized with a Track Name for selection purposes. 

Also, the Bowling Green KLU program date has changed to November 4-5, 2009, so please mark your calendars.

If you have any questions or problems, please feel free to contact me at or at (502) 564-3795 ext. 226. 

Judge Susan Gibson gets it right in McCoy sentence. Judge asks: “are we mad at this defendant or are we afraid of this defendant?”

Tuesday, May 12th, 2009


Editorial by LawReader Senior Editor Stan Billingsley    May 12, 2009


Jefferson Circuit Judge Susan Schultz Gibson was required this week to sentence 21 year old Kathryn McCoy for Tampering with Physical Evidence. After her child was stillborn, McCoy concealed the child’s body.  That was the one charge for which McCoy was convicted.  Judge Gibson did what good judges are supposed to do and imposed what we think was a fair sentence and for the right reasons.  She sentenced McCoy to two years, but then granted probation against the recommendation of the Prosecutor Katherine Kingren. McCoy had spent 52 days in jail.


Judge Gibson asked the following rhetorical question when explaining her granting of probation:  “…are we mad at this defendant or are we afraid of this defendant?”

Judge Gibson’s question correctly focuses on an issue that more judges should consider in their sentencing decisions. 


McCoy had been charged with homicide offenses related to the birth of her child and the concealment of the body of the baby. The jury acquitted the college student of homicide. McCoy gave birth to the child in a bathroom at Anniversary Hall at Bellarmine University. 


We can appreciate how the Judge could have easily played to the crowd and imposed the maximum sentence of five years without probation. This was not an easy decision but it was a fair decision.  As a former Judge, I appreciate how easy it would have been for Judge Gibson to have imposed a harsh sentence and not provide fodder to some opponent in the future who will probably try to use this decision against her.  A lesser Judge might not have stood so tall. 


We also note that Kingren, unlike some prosecutors, accepted the sentence in a professional manner and said, “the community can trust (the) Judge’s decisions”.  We have witnessed, over the years, some prosecutors who stalked out of courtrooms when the court ruled against them, and blasted the court’s decisions in press conferences. Kudo’s to Kingren for being professional in her response to the court’s ruling.  The prosecutor did her job, but when the ruling was made, Kingren acted like the professional she is and accepted the ruling.


Judge Gibson was elected to the Jefferson Circuit Court bench in November 2006.

Google Now Offers Free Telephone information Service…this is really useful…and the price can’t be beaten. Check this out!!

Tuesday, May 5th, 2009

Here’s a number worth putting in your cell phone, or your home phone speed dial: 1-800-goog411 or 1-800-466-4411.

This is an awesome service from Google, and it’s free — great when you are on the road.

Don’t waste your money on information calls and don’t waste your time manually dialing the number. I am driving along in my car and I need to call the golf course and I don’t know the number. I hit the speed dial for information that I have programmed (1-800-goog411).

The voice at the other end says, “Say the name of the business and the City & State.” I say, “Firewheel Golf Course, Garland , Texas .’ He says, “Connecting,” and Firewheel answers the phone. How great is that?

This is nationwide and it is absolutely free! Works on cell and landline phones.

Click on the link below and watch the short clip for a quick demonstration.

What’s going on here…Is U.S. Supreme Court Pendulum Swinging Back in Favor of Criminal Defendants?

Tuesday, May 5th, 2009

May 5, 2009  - By LawReader Senior Editor Stan Billingsley

   Something is going on with the U.S. Supreme Court.  This is beginning to look like a real trend.  Four recent decisions (by a Supreme Court which inlcudes Thomas, Alioto, Roberts and Scalia,)  have definitely favored criminal defendants.  This comes after a 40 year attack on the liberal Earl Warren Court.  (See more about the Warren Court below.)

Confrontation Clause – Crawford v. Washington, 541 U.S. 36 (2004), is a United States Supreme Court decision that reformulated the standard for determining when the admission of hearsay statements in criminal cases is permitted under the Confrontation Clause of the Sixth Amendment to the United States Constitution.  This ruling held that the right of a defendant to face his accusers at trial, should be literally applied, and that hearsay if “evidentiary” could not be introduced at trial.

Warrantless Search of Automobile when Def. in custody – This month the Supreme Court in Arizona v. Gant limited the application of Belton and restricted warrantless searches of a defendants automobile when the defendant was in police custody.

For many years, the Supreme Court has permitted police to search the passenger compartment of a vehicle any time an occupant of the car is arrested. These so-called “searches incident to arrest” were authorized in New York v. Belton (1981) based in large part on concerns about officer safety, namely that the suspect might dive for a weapon hidden in the car. As a result, police have grown accustomed to searching vehicles for “safety reasons” even after the suspect has been taken into custody. This doesn’t protect officers, but it certainly encourages police to make more arrests so they can do more searches.

Well, that’s finally going to change. The Supreme Court ruled today in Arizona v. Gant that vehicle searches following an arrest are legal only if the suspect has access to the vehicle or if officers reasonably believe the vehicle contains evidence related to that arrest. In other words, police are now required to have an actual reason to justify the vehicle search, instead of being allowed to do it automatically. This decision restores some much needed logic and common sense to the way many warrantless vehicle searches are analyzed under the 4th Amendment.

Justices Souter, Kennedy, Scalia, Ginsburg and Stevens all were openly incredulous of the claim that officer safety could justify the rule. And Justice Scalia scoffed at the idea that there was any need to preserve evidence that might be found in the car in the case of an arrest for a traffic violation. “Evidence of what?” he asked.

This ruling will affect a number of Kentucky rulings which have allowed warrantless searches of automobiles.  This ruling may be a warning sign to State Appellate Courts to stop expanding the list of exceptions to the 4th. Amendment.

Immigrant Identify Theft- This week the Supreme Court ruled in Flores-Figueroa v. U.S., 08-108 that the government could not prosecute immigrants who used fake identification documents with “identity theft” unless they could prove that the identity used by the defendant was that of a real person instead of a totally fake person.

Death Penalty for Juveniles – In March of 2005 in ROPER v. SIMMONS, No. 03-0633  the United States Supreme Court ruled that the death penalty for those who had committed their crimes at under 18 years of age was cruel and unusual punishment and hence barred by the Constitution.   For more information, see: Roper v. Simmons Resource Page.

On May 4, 2009 the Supreme Court agreed to hear an appeal where the issue of Life Sentences for Juveniles is being attacked on the same theories as heard in the Roper decision.

    One possible explanation is the “original construction” doctrine advanced by Justice Scalia.  While he does not apply this legal theory in all of his rulings, when it suits his needs, he does so.   He cited the plain language of the 6th. Amendment to uphold the right to confrontation in Crawford v. Washington.  

We suggest that this “original construction” doctrine when applied to criminal law, could do great violence to Terry v. Ohio and its offspring rulings which allow exceptions to the 4th. Amendment such as “plain view exception”, “plain smell exception”, “plain touch exception”, and drug dog searches.  But before we get carried away, we must recall that last year the Supreme Court allowed an officer to sneak into the curtilage of a home, peak through a window and arrest a parent for a tussle with his teenage son.

   We suggest that the ruling in Arizona v. Gant will have to work it’s way through the state appellate courts.  There is a great possibility that a number of Kentucky rulings may be reviewed in light of this change in the judicial wind emanating from the U.S. Supreme Court.


The Warren Court:

Chief Justice Earl Warren who served from October 5, 1953 to June 23, 1969 was able to craft a long series of landmark decisions including:

  • Gideon v. Wainwright, 372 U.S. 335 (1963), which held that the Sixth Amendment required that indigent non-capital criminal defendants receive publicly-funded counsel (the law to that point requiring the assignment of free counsel only to indigent capital defendants);
  • Miranda v. Arizona, 384 U.S. 436 (1966), which required that certain rights of a person being interrogated while in police custody be clearly explained, including the right to an attorney (often called the “Miranda warning“).

The Warren Court also saw rulings on police arrest procedure in the United States which raised the ire of conservatives.  His courts ruling in Terry v. Ohio (1961) only allowed police officers to conduct brief pat down searches for weapons.  In later years this ruling has been expanded far beyond its original intent and today we have many examples of warrantless searches justified by Terry v. Ohio.






U.S. Supreme Court previously forbade death penalty for juveniles, now will consider life sentences

Monday, May 4th, 2009

The Supreme Court agreed on Monday to consider whether the reasoning that led it to strike down the death penalty for juvenile offenders four years ago should also apply to sentences of life without the possibility of parole.

The court accepted two cases on the issue, both from Florida and neither involving a killing. In one, Joe Sullivan was sentenced to life without the possibility of release for raping a 72-year-old woman in 1989, when he was 13. In the other, Terrance Graham received the same sentence for participating in a home invasion robbery in 2004, when he was 17 and on probation for other crimes

U.S. Supreme Court Limits Corporate Liability in Superfund Cases for companies who had only limited responsibility for toxic spills

Monday, May 4th, 2009

The Supreme Court on Monday made it harder for the government to recover the often enormous costs of environmental cleanups from companies with only minor or limited responsibility for toxic spills.

Skip to next paragraph The decision tightened the reach of the Superfund law, known formally as the Comprehensive Environmental Response, Compensation and Liability Act, by limiting both the kinds of companies subject to liability and the situations in which partly culpable companies can be made to bear the entire cost of cleanups.

The case arose from environmental contamination from a chemical distribution business in Arvin, Calif. The federal government had sought to hold the Shell Oil Company responsible for selling pesticides to the business, where the chemicals routinely leaked and spilled. The distribution business, Brown & Bryant, later became insolvent and ceased operations.

Shell argued that it could not be held responsible for the spills because it did not qualify under the relevant part of the Superfund law, which applies to companies that “arranged for disposal” of hazardous substances. Justice John Paul Stevens, writing for the majority in the 8-to-1 decision, said the statutory language applied only when companies took “intentional steps to dispose of a hazardous substance.”

“Shell’s mere knowledge that spills and leaks continued to occur” with each delivery, Justice Stevens continued, “is insufficient grounds for concluding that Shell ‘arranged for’ the disposal.”

In dissent, Justice Ruth Bader Ginsburg wrote that Shell was “well aware” that its deliveries “directly and routinely” resulted in spills and leaks for more than 20 years. She added that she would have placed the cleanup costs on a company “whose activities contributed to the contamination rather than on the taxpaying public.”

The decision also addressed the liability of two railroad companies that had leased land to the distribution business. There was no dispute that these companies were subject to Superfund liability. The question was whether they could be made to pay all of the cleanup costs or just a portion of them.

The trial judge limited the companies’ liability to 9 percent of the total. He based his calculations on how much land the companies owned, how long they owned it and where the bulk of the discharges happened. The United States Court of Appeals for the Ninth Circuit reversed the judge’s decision, saying those calculations were based on estimates. As a consequence, the appeals court said, the companies could be held liable for the cost of the entire cleanup.

The Supreme Court, in turn, reversed that decision, saying that apportionment of liability is appropriate so long as there is a reasonable basis for determining the contribution of each wrongdoer.

Justice Ginsburg dissented on this point, too. While she praised the trial judge’s “heroic labor,” she said the railroad companies should have been required to prove their comparative lack of responsibility. Instead, she wrote, the companies simply disclaimed all responsibility.

That is not how the adversary system is supposed to work, Justice Ginsburg wrote. She said she would have returned the cases, Burlington Northern and Santa Fe Railway Company v. United States, No. 07-1601, and Shell Oil Company v. United States, No. 07-1607, to the lower courts to allow the parties to litigate the apportionment issue.


U.S. Supreme Court rules for immigrant who uses fake id of non-existing person. Court says this is not identity theft

Monday, May 4th, 2009

A unanimous Supreme Court said Monday that undocumented workers who use phony IDs can’t be considered identity thieves without proof they knew they were stealing real people’s Social Security and other numbers.

The court’s decision limits federal authorities’ use of a 2004 law, intended to get tough on identity thieves, against immigrants who are picked up in workplace raids and found to be using false Social Security and alien registration numbers.

Advocates for immigrants had complained that federal authorities used the threat of prosecution on the identity theft charge, which carries a two-year mandatory prison term, to win guilty pleas on lesser charges and acceptance of prompt deportation.

“These prosecutions have been taken off the table,” said Nina Perales, southwest regional counsel for the Mexican American Legal Defense and Education Fund.

The court, in an opinion by Justice Stephen Breyer, rejected the government’s argument that prosecutors need only show that the identification numbers belong to someone else, regardless of whether the defendant knew it.

Breyer said intent is often easy to prove in what he called classic identity theft. “Where a defendant has used another person’s information to get access to that person’s bank account, the government can prove knowledge with little difficulty,” Breyer said.

But immigrants without proper documentation need identity documents and often buy them from forgers, never knowing if they belong to anyone.

Such was the case with the undocumented worker on the winning side Monday. Ignacio Carlos Flores-Figueroa, a Mexican immigrant employed at a steel plant in East Moline, Ill., traveled to Chicago and bought numbers from someone who trades in counterfeit IDs.

Unlike earlier fictitious numbers Flores-Figueroa used, these numbers belonged to real people.

Flores-Figueroa had worked at the plant under a false name for six years. His decision to use his real name and exchange one set of phony numbers for another aroused his employer’s suspicions.

He was arrested in 2006 and convicted on false document and identity theft charges.

He appealed his conviction as an identity thief, but the 8th U.S. Circuit Court of Appeals in St. Louis upheld the conviction. With appeals courts divided on the issue, the Supreme Court stepped into the case.

The Bush administration used the identity theft law hundreds of times last year. Workers accused of immigration violations found themselves facing the more serious identity theft charge as well, without any indication they knew their counterfeit Social Security and other identification numbers belonged to actual people and were not made up.

After last year’s raid on a kosher slaughterhouse in Postville, Iowa, authorities charged 270 undocumented workers with identity theft. They all accepted plea deals in which they also agreed not to contest deportation.

But illustrating the arbitrary nature of the law — which several justices commented on during arguments in February — an additional 100 workers arrested in the same raid faced less serious charges because their identification numbers were made up.

The Obama administration has shifted the main focus of immigration raids to employers.

The case is Flores-Figueroa v. U.S., 08-108.


Chief Judge Sara Comb’s stays ruling shutting down early-release program

Saturday, May 2nd, 2009

FRANKFORT, Ky. — Kentucky Court of Appeals Chief Judge Chief Judge Sara Combs granted Corrections Commissioner Ladonna Thompson’s request to stay Pulaski Circuit Judge David Tapp’s order which threw out the states early-release program.  Judge Combs recommended transferring the case to the Kentucky Supreme Court because of its “great and immediate public interest.”

Under Comb’s order the state can resume releasing prisoners under a controversial early-release program.

On Wednesday, Circuit Judge David Tapp issued an order directing the state to stop releasing inmates under the program in all 120 counties. That order also applied to parolees who were removed from supervision under the program.

Combs said her stay order was effective only until the Supreme Court rules on the recommendation to take the case or issues other orders on the matter.

At issue is a “parole supervision credit” that was part of the 2009-10 budget bill. Tapp ruled the Department of Corrections was violating Kentucky law by applying the credit to prisoners and parolees for time spent on parole before the budget bill became law.

Justice Venters delivers keynote speech at Kentucky’s Law Day celebration

Friday, May 1st, 2009

Law Day designated to celebrate rule of law, American freedoms

 FRANKFORT, Ky., May 1, 2009 – For a society that values liberty and the rule of law, having many lawyers is “a good thing,” Justice Daniel J. Venters of the Supreme Court of Kentucky told an audience today during the Kentucky Law Day celebration at the Capitol in Frankfort. Justice Venters was the keynote speaker for the public event, which took place in the chamber of the House of Representatives.

“People feel frustrated, even annoyed, by the burdens sometimes imposed by the legal processes implicit in the rule of law,” Justice Venters said. “But we should not be surprised or offended that citizens, who would send their children around the world to die protecting or securing other people’s rights, would not hesitate to assert their own rights in a court of law.”

Law Day is a nationally designated day for Americans to celebrate the rule of law. The day underscores how law and the legal process have contributed to the freedoms of Americans. President Dwight D. Eisenhower proclaimed the first Law Day 51 years ago on May 1, 1958, to strengthen America’s heritage of liberty, justice and equality under the law. In April 1961, Congress passed a joint resolution designating each May 1 as Law Day, U.S.A.

In Kentucky, new attorneys are sworn in as part of the celebration each Law Day. Supreme Court Clerk Susan Stokley Clary swore in 143 new Kentucky attorneys on this Law Day.

“It is the work of the lawyer, however great or mundane it may seem, that for the past nine centuries has kept the idea of liberty and the rule of law alive in the hearts of men and women,” Justice Venters told the new attorneys during his speech. “That is the legacy of liberty passed to you. Your charge is to keep it and preserve it, and deliver it safely to the next generation.”  

Also during the Law Day ceremony, individuals who have contributed to law-related education received awards. Justice Venters was among the award recipients this year, earning the Liberty Bell Award for his Law Day speech and other efforts.

The national theme for this year’s Law Day is A Legacy of Liberty. The theme recognizes the 200th anniversary of the birth of President Abraham Lincoln, who was a lawyer.

Of President Lincoln, Justice Venters said in his speech, “As a young lawyer, not yet 30 years of age, Lincoln spoke of our faith in the rule of law when he said ‘Let reverence for the laws be breathed by every American mother to the lisping babe that prattles on her lap. Let it be taught in schools, in seminaries and in colleges. Let it be written in primers, spelling books and in almanacs. Let it be preached from the pulpit, proclaimed in legislative halls and enforced in courts of justice. And, in short, let it become the political religion of the nation and let the old and the young, the rich and the poor, the grave and the gay, of all sexes and tongues, and colors and conditions, sacrifice unceasingly upon its altars.’ ”

Justice Daniel J. Venters
Justice Daniel J. Venters of the Supreme Court of Kentucky represents the 3rd Supreme Court District, which is comprised of 27 counties across Southeastern Kentucky. Gov. Steve Beshear appointed Justice Venters to the court in August 2008 to fill the seat made vacant by the retirement of Chief Justice Joseph E. Lambert.

 The 3rd Supreme Court District is comprised of Adair, Bell, Casey, Clay, Clinton, Cumberland, Estill, Garrard, Green, Jackson, Knox, Laurel, Lee, Leslie, Lincoln, Marion, McCreary, Metcalfe, Monroe, Nelson, Pulaski, Rockcastle, Russell, Taylor, Washington, Wayne, and Whitley counties.

 Justice Venters came to the Supreme Court with 24 years of judicial experience, serving as a Circuit Court judge for Pulaski, Lincoln and Rockcastle counties from 1984 to 2003 and as a District Court judge for Pulaski and Rockcastle counties from 1979 to 1984. In 1986, he earned the Henry V. Pennington Trial Judge Award.

 Justice Venters retired from the trial court bench in 2003 and returned to private law practice in his hometown of Somerset, focusing on civil litigation.

 Prior to his judicial career, Justice Venters was an assistant commonwealth’s attorney for Lincoln, Pulaski and Rockcastle counties from 1975 to 1979 under then-Commonwealth’s Attorney Hal Rogers, who is now a U.S. congressman.

 Justice Venters was admitted to practice by the Kentucky Bar Association in 1975, the U.S. District Court for the Eastern District in 1977, the U.S. Supreme Court in 2001 and the U.S. District Court for the Western District in 2004. He earned his juris doctor in 1975 from the University of Kentucky College of Law. He has a bachelor’s degree from The Ohio State University.

 Justice Venters has served as a member of the Kentucky Board of Bar Examiners and as a member of the Kentucky Bar Association Board of Governors.

 He and his wife, attorney Jane Adams Venters, reside in Somerset. She also is a graduate of the UK College of Law and practices family law in Somerset.