Archive for August, 2009

ERIC DETERS COMMENTS ON HIS CHARITY CAGE BRAWL

Monday, August 31st, 2009

ERIC DETERS COMMENTS ON HIS CHARITY CAGE BRAWL

VIEWE VIDEO ON YOUTUBE AT: http://www.youtube.com/watch?v=5aCN37Vh2Q0

Note:  Eric’s charity was Rich Franklins disabled vets charity. Eric earned $1000 for the charity.

Blog – Monday, August 31, 2009

Quote Of The Day:    “In the actions of all men one judges by the result.”  Machiavelli

And I lost.  But, I take the following away from my fight.  This will be comments about same here at the blog so I can move on to the next adventure.

 

1.                  I give credit to Larry “The Poodle” Shelton for winning.

2.                  For those who thought I would chicken out or it wasn’t real – wrong.

3.                  I’m uninjured and unscathed.

4.                  I take pride that I took him down and nearly had his neck in a scissors hold.

5.                  You can’t announce such a thing before a fight because it exposes you, but I suffered a severe bone bruise in my knee.  (Dr. Colissimo said it would only get better if I stayed off it.  I’ve been limping for two months.  No serious running/cardio for two months.  And, try fighting on a leg in pain.  It sucked.)  Colissimo told me not to fight.

6.                  I lasted the fourth longest of the fourteen losers in all the bouts.  I got gassed and tapped out.

7.                  Remember the “Poodle” is 14 years younger and trained with a trainer and sparred etc.  (I only lifted weights, stretched and hit my heavy bag.)

8.                  The only person who can talk smack to me is Larry Shelton.  He earned it.

9.                  It was fun.  I was not scared.  It was an experience I’ll tell stories about forever.

10.              The police and their wives in the crowd behaved like juveniles.  You wonder why there is police misconduct?  Because behind a lot of those badges are jerks.  They showed it Saturday night.

11.              There are a lot of good police officers and they have my respect and they also understand humor a lot better than those who don’t.

12.              I’m going to heal my knee and keep training.  I love being in good shape.

THE BARRISTER’S BRAWL – A poem about the Eric Deters Charity Challenge Cage Fight

Monday, August 31st, 2009

 

THE BARRISTER’S BRAWL

by Kenton Circuit Judge Marty Sheehan

 A lawyer of local acclaim,

In a move sure to increase his fame,

Did one day incautiously boast,

As a boisterous radio host,

That he could kick any County Cop’s rear.

 He had filed countless suits for police brutality,

And now spoke without any thought of mortality.

Such inflamed words helped to drive up his ratings,

So the local cops he would continue berating.

He thought he had little to fear.

 Much to the lawyer’s chagrin,

At that moment it seems several cops were tuned in.

Most just grew mad as they continued to listen,

But there was one whose eyes started to glisten.

He’d make that S.O.B. pay.

 This cop was a trained martial arts fighter.

His chance to knock out a foe never seemed brighter.

Defending police honor would only be fair,

So he picked up the phone and answered the dare.

“Let’s hear what the Bulldog will say!”

 The Bulldog’s response it was shocking,

And in a tone which appeared to be mocking,

He blurted out without really thinking,

“I’ll kick your butt until it is stinking.”

Words he would later regret.

 Out of fear for the lawyer’s plight,

Two local states refused to permit the fight.

But Indiana was soon given a call,

And they were most happy to sanction the brawl.

The Bulldog was beginning to fret.

 “Down Goes Frazier” has been the most famous retort,

In the history of this most violent sport.

But when the Bulldog is down for the count; stunned and dazed,

The new cry could be, “He must have been crazed!”

 The lawyer now wished he could take it all back.

He loathed the idea of eyes blue and black.

His mouth had worked faster than his brain on that day.
”They should all know I don’t always mean what I say!”

 But the brawl will go off as originally planned.

That’s what the ticket holders justly demand.

The Bulldog and K-9 in a historic fight

At the Lawrenceburg Fairgrounds, on a hot August night.

 The lawyer could have backed out and said the dare was a joke

But backing down from a challenge is not in his yoke.

Say what you will about the Bulldog’s vast flaws,

What he lacks in good sense he makes up for with balls.

 Hyping the fight was a shock jock named Willie,

Whose outrageous comments made him appear rather silly.

Seems like this goof ball has always got something to say

He won’t let the facts or his ignorance stand in the way.

 The crowd wasn’t pleased with Willie’s remarks

So at the tossing of beer cans they did embark

One beverage hit Willie square in the head

His tired old act was wearing thin as a thread.

 Thousands had come to witness the bout,

Girls in loose halters with boobs popping out,

Cops and crooks and some lawyers too,

“Hey Bubba have ya seen my brand new tattoo?”

 The crowd in attendance was an extremely rough mix,

With menacing scars and front teeth to fix.

But they all were united in one simple cause,

To see the Bulldog covered in band-aids and gauze.

 Decked out in Armani and fancy dress shoes

He entered the ring to a chorus of boo’s.

As he stripped down to his custom made shorts

He thought, “This could be worse than my last trial in court.”

 As the bell sounded to commence the fight

The K-9 charged forward and landed a right.

He followed that up with a few body blows

As the onlookers screamed, “Break his big nose!”

 At 1:56 of Round One the Bulldog went down

In the blood thirsty crowd there was nary a frown.

The Bulldog scrambled to cover his head

As the K-9 pummeled him with fists of lead.

 Nearly all in attendance

Began to scream and shout

Now there’s joy in Independence,

The mighty Bulldog has tapped out.

 

CAMELOT WILL NOT BE FORGOT – by Stan Billingsley

Monday, August 31st, 2009

Camelot Will Not Be Forgot

By Stan Billingsley-

 

“Don’t let it be forgot,

That once there was a spot

For one brief shining moment

That was known as Camelot.”

     As they laid to rest the third prince, some said that Camelot would now be “forgot”.

But men and women from every hamlet, from every land, champion the tale, and carry forward its banner.

This Arthurian tale, that skeptics call legend, has lived a thousand years and will live another, and another.  

    Camelot speaks of a Roundtable, where men of all classes sit as equals.  To sit at this table one need only be a seeker of justice, no pedigree required.  Its Knights recognize a quest of public service.  Be they a clerk, a scribe, a wise man, a merchant, a teacher or speak a foreign tongue, all are welcome at this table.  This is the eternal flame of Camelot. This is why it will not be “forgot”.

   Skeptics forget the message of John F. Kennedy that public service was a high calling, and served a noble purpose.  They forget the call of Robert Kennedy for social justice and the virtues of peace. 

They forget the oft spoken words of Ted Kennedy that told us Camelot would live on:

 “To those who seek justice…The Work Continues, Hope Still Lives, The Cause Endures, And the Dream Lives On”.

PUBLIC INVITED TO GROUNDBREAKING OF NEW CAMPBELL CO. COURTHOUSE ADDITION

Thursday, August 27th, 2009

FRANKFORT, Ky. — The public is invited to a groundbreaking ceremony for the planned Campbell County Judicial Center on Tuesday, Sept. 1, at 3 p.m. EDT. The event will take place at 330 York St. in Newport.

The Kentucky General Assembly authorized an addition/renovation project for Campbell County in 2006 and approved funding in 2008. The project is designed to update and preserve the 125-year-old Campbell County Courthouse while increasing the judicial center to 103,700 square feet.

New judicial centers replace older, inadequate facilities, greatly increasing the efficiency of services and public flow. All new judicial centers are equipped with the modern infrastructure to support data, computer, video and networking technology. The facilities also provide the highest level of Kentucky court security through a single-point entry with magnetometers and security personnel.

Chief Justice of Kentucky John D. Minton Jr. said he appreciates the legislators and county officials who have supported this project for Campbell County. “Kentucky citizens generate more than 1 million court cases each year,” Chief Justice Minton said. “Our citizens deserve safe, efficient facilities in which to conduct their business before the courts.”

CMW Inc. architectural firm of Lexington designed the Campbell County Judicial Center. Codell Construction Company of Winchester is the construction manager for the project and Ross, Sinclaire & Associates, which serves Kentucky and six other states, is the financial agent.

Chief Justice Minton will be among the speakers at the ceremony. Other state and local officials expected to attend include judges, attorneys, the Campbell County judge-executive and the Campbell County circuit court clerk. For more information, contact Vance Mitchell, manager of the AOC Division of Capital Construction, at 800-928-2350.     

Process for Constructing Judicial Facilities

The Kentucky Administrative Office of the Courts provides oversight and administration of court facilities in accordance with House Bill 734, which was passed by the 2000 General Assembly. As a result of this legislation, the AOC created a process that would fairly and objectively determine facility needs. The AOC’s Facilities Management System has earned the Kentucky Court of Justice a national reputation for being able to identify facilities with the greatest needs for new construction, renovation, expansion and adaptation.

Once funding for a judicial center is authorized, the AOC Division of Capital Construction works with local communities to assemble a Project Development Board. This board ensures that county and court officials have input on all aspects of the project, including decisions on the site, architect and contractor. This PDB consists of two Campbell County Courthouse Commission representatives, the county judge-executive, the chief circuit judge, the chief district judge, the circuit court clerk, the AOC designee, a local citizen at large and a Kentucky Bar Association designee.

As the administrative and fiscal agent for the Kentucky Court of Justice, the AOC oversees the construction and maintenance of court facilities statewide and supports the activities of 3,800 court system employees, including the elected justices, judges and circuit court clerks

 

Ky. Supreme Court Overrules Ct. of Appeals Order Allowing Access to BA Machine Computer Codes

Thursday, August 27th, 2009

The DUI bar has been eagerly awaiting the ruling of the Kentucky Supreme Court regarding the attempt of a defendant (Lennie House of Lexington) to obtain access to the computer code of the Intoxilyzer 5000 Breathalyzer machine.   At least two other states have granted access to these codes.  The Kentucky company which manufacturers the BA machine faces contempt of court fines in two states totaling $21,000,000, for their failure to release the codes as ordered by the courts.

 

The Kentucky Supreme Court ruled in a published decision released on Aug. 27th, 2009 that the subpoena for the codes was a “fishing expedition” and was not supported by sufficient facts to justify discovery.

 

The Kentucky Supreme Court said:

 

“In sum, CR 7.02(3) provides for subpoenas duces tecum to permit pretrial inspection of evidence to be admitted at trial. It is not meant to be a discovery device, however, and does not permit the subpoenaing of materials in the mere hope that they will prove evidentiary. Because House’s CMI subpoena demanding production of the Intoxilyzer’s source code was based on nothing more substantial than the conjecture that there might be material flaws in the code, the subpoena was “unreasonable” for the purposes of the rule, and the Court of Appeals erred by requiring that it be enforced .”

 

LawReader analyzes this ruling as to say that if there were sufficient grounds to believe the evidence was relevant and material, that a different conclusion might have been found by the court.

 

See the entire ruling as published on LawReader:
2008-SC-004114-DG
COMMONWEALTH OF KENTUCKY      APPELLANT
ON REVIEW FROM COURT OF APPEALS
V. CASE NO. 2007-CA-000417-MR
FAYETTE CIRCUIT COURT NO. 06-XX-00054
RENDERED : AUGUST 27, 2009
TO BE PUBLISHED
LENNIE G. HOUSE                               APPELLEE
OPINION OF THE COURT BY JUSTICE ABRAMSON
REVERSING
The Commonwealth seeks discretionary review of a Court of Appeals’
opinion reversing an agreed order of conviction entered following Lennie
House’s conditional guilty plea to a charge of driving under the influence (DUI) .
The Court of Appeals remanded the matter to the Fayette District Court for
additional proceedings including the enforcement of a subpoena duces tecum
pursuant to which House seeks to discover the computer code embedded in the
Intoxilyzer 5000 EN . The Intoxilyzer, manufactured by CMI, Inc ., of
Owensboro, Kentucky, is the device adopted in Kentucky for measuring the
alcohol concentration in a DUI suspect’s blood . The Court of Appeals ruled
that House was entitled to inspect the Intoxilyzer’s computer code on the off
chance that he might discover problems in the code calling the device’s
accuracy into question . Because we agree with the Commonwealth that this
case raises an important question concerning the scope of a criminal
defendant’s right to subpoena and inspect evidence prior to trial, we accepted
review, and now, having concluded that House is not entitled to the computer
code on the facts presented, we reverse .
RELEVANT FACTS
House was arrested and charged with DUI in March 2006, when a
Lexington police officer observed him driving erratically on Tates Creek Road .
The officer reported that when he stopped House he could smell alcohol on
House’s person ; observed an open beer can in the front seat of House’s vehicle ;
had House perform field sobriety tests, all of which House failed; and
administered a preliminary breath test, which registered an alcohol
concentration of 0.160 . Thereupon, the officer arrested House and transported
him to the Fayette County Detention Center, where he administered a breath
alcohol test with the Intoxilyzer 5000 EN. That device calculated House’s blood
alcohol level to be 0.201, a level violative of KRS 189A .010(a), which, in
pertinent part, makes it unlawful for a person to operate a motor vehicle if the
person “[h]a[s] an alcohol concentration of 0.08 or more as measured by a
scientifically reliable test or tests of a sample of the person’s breath . . .
On the basis of the officer’s report and the Intoxilyzer result, House was
charged in Fayette District Court with first offense DUI. Prior to trial, House
served the Commonwealth with a discovery motion that included a demand for
the Intoxilyzer’s “source code,” the computer commands that control the
Intoxilyzer as it isolates the subject’s breath sample, tests the sample for the
presence and the amount of alcohol, and then uses the test results to calculate
the subject’s blood alcohol level . When the Commonwealth denied this request
because it did not have possession or control of the manufacturer’s computer
code, House, pursuant to RCr 7.02(3), served CMI with a subpoena duces
tecum demanding that it produce the “source code” at an August 8, 2006 pretrial
hearing. At the hearing, House introduced an expert who testified that if
given access to the code he could examine it for “bugs,” i.e., errors in the code’s
logic which could cause the machine to produce inaccurate results. The expert
admitted on cross-examination, however, that he knew of no reason to suspect
that the code was in any way flawed . At the conclusion of the expert’s
testimony, CMI and the Commonwealth both moved that the subpoena be
quashed on the grounds, among others, that by demanding the production of
CMI’s trade secrets, the subpoena was unreasonable and oppressive and that
House had failed to establish that the source code was relevant to
his case .
House argued that he was entitled to the code not only under RCr 7.02(3) but
also under the Sixth Amendment to the United States Constitution. The
district court agreed with CMI and the Commonwealth that House had failed to
establish relevancy and so granted the motions to quash.
In the wake of the district court’s ruling, House pled guilty to DUI, first
offense, but reserved his right to appeal the order quashing his CMI subpoena.
He duly appealed to the Fayette Circuit Court, which affirmed, agreeing with
the district court that House’s failure to identify some reason to suspect a
material error in the source code defeated his demand to inspect it.
House then sought discretionary review in the Court of Appeals, which,
in a divided opinion, reversed . The Court of Appeals’ majority ruled that House
was entitled to search CMI’s Intoxilyzer source code for errors because under
RCr 7.02(3) a subpoena duces tecum may be quashed only if “unreasonable or
oppressive” and in its view House’s subpoena was neither. Having considered
the Commonwealth’s challenge to the Court of Appeals’ reading of RCr 7.02(3),
we agree with the Commonwealth that House’s subpoena was indeed
unreasonable and should be quashed .
ANALYSIS
As part of the rule governing subpoenas in criminal cases, RCr 7.02(3)
provides for subpoenas duces tecum as follows :
A subpoena may also command the person to
whom it is directed to produce the books, papers,
documents or other objects designated therein . The
court on motion made promptly may quash or modify
the subpoena if compliance would be unreasonable or
oppressive . The court may direct that books, papers,
documents or objects designated in the subpoena be
produced before the court at a time prior to the trial or
prior to the time when they are to be offered in
evidence and may upon their production permit the
books, papers, documents or objects or portions
thereof to be inspected by the parties and their
attorneys.
Although RCr 7.02(3) has not been construed in Kentucky, our rule was taken
verbatim from Federal Rule of Criminal Procedure 17(c), which the United
States Supreme Court has explained was not intended to serve as a discovery
device for criminal cases, but was meant “to expedite the trial by providing a
time and place before trial for the inspection of subpoenaed materials .” United
States v. Nixon, 418 U.S . 683, 698-99 (1974) (citing Bowman Dairy Co . v.
United States, 341 U.S . 214 (1951)) . Accordingly, the high Court has adopted
the following four-part test for determining when a movant is entitled to the
production of subpoenaed materials prior to trial:
[T]he moving party must show: (1) that the documents
are evidentiary and relevant; (2) that they are not
otherwise procurable reasonably in advance of trial by
exercise of due diligence ; (3) that the party cannot
properly prepare for trial without such production and
inspection in advance of trial and that the failure to
obtain such inspection may tend unreasonably to
delay the trial; and (4) that the application is made in
good faith and is not intended as a general “fishing
expedition.”
Id. at 699-700 (footnote omitted) . A subpoena that fails this test is not
“reasonable” for the purposes of the federal rule . Notably, the federal courts
applying this test have held that the relevancy and no-fishing-expedition
prongs are not satisfied by subpoenas grounded in nothing more than
conjecture or mere hope that the subpoenaed material will include admissible
evidence.
See, ..e-,Ungited States v. Abdush-Shakur, 465 F.3d 458 (10th Cir.
2006); United States v. Tokash, 282 F.3d 962 (7th Cir. 2002) ; United States v.
Hang, 75 F.3d 1275 (8th Cir. 1996) ; United States v. Arditti, 955 F.2d 331 (5th
Cir. 1992) ; United States v. Cuthbertson, 630 F.2d 139 (3rd Cir. 1980) . But
see United States v. Tucker, 249 F.R .D . 58 (S.D .N.Y 2008) (distinguishing
defense subpoenas from prosecution subpoenas and opining that the Nixon
test does not apply to the former) .
Our verbatim adoption of the federal rule makes this federal precedent
particularly apt and persuasive, and we conclude that, like the federal rule,
RCr 7.02(3) is not a discovery device, but rather a means of procuring evidence
and of permitting pre-trial inspection of evidence when inspection at trial would
disrupt the proceedings. Like most of the myriad other matters a trial court is
called upon to decide during the course of proceedings, motions for pre-trial
production under RCr 7.02(3) and motions to quash subpoenas are subject to
the trial court’s sound discretion and will be reversed on appeal only for abuse
of that discretion . Cf. Transit Authority of River City v. Montgomery, 836
S.W .2d 413, 416 (Ky. 1992) . (“[A trial judge] sits to administer the law and
guide the proceedings before him. He is vested with a large discretion in the
conduct of the trial of causes and an appellate court will not interpose to
control the exercise of such discretion by a court of original jurisdiction, unless
there has been an abuse or a most unwise exercise thereof.”) A subpoena
duces tecum under our rule may be quashed if it is “unreasonable or
oppressive,” and we agree with the federal courts that it is unreasonable if, as
in this case, the party demanding production can point to nothing more than
hope or conjecture that the subpoenaed material will provide admissible
evidence . House, as noted above, sought CMI’s Intoxilyzer code hoping that his
expert might discover flaws in it, but he presented no evidence whatsoever
suggesting that the code was flawed . His subpoena was nothing but a classic
fishing expedition, which RCr 7.02(3) does not allow. The Court of Appeals
erred by ruling otherwise .

House also contends that even if RCr 7.02(3) does not entitle him to
inspect CMI’s Intoxilyzer code, the Confrontation Clause of the Sixth
Amendment to the United States Constitution does . This issue is not properly
before us, however, because the Court of Appeals did not reach it and House
has failed to raise it in this Court by a cross-motion for discretionary review.

As we recently reiterated in Louisville and Jefferson County Metropolitan Sewer
District v. Bischoff, 248 S.W.3d 533 (Ky. 2007), CR 76 .21(1) requires such a
cross-motion by the party prevailing in the Court of Appeals if he wishes review
of issues raised in but not addressed by the Court of Appeals or issues the
Court of Appeals decided adversely to him. “If the party prevailing in the Court
of Appeals wishes further consideration of such issues along with the issues for
which discretionary review has been granted, the prevailing party must file a
cross motion for discretionary review.” Perry v. Williamson, 824 S.W.2d 869,
871 (Ky. 1992) . Because House failed to abide by this rule, we must decline to
address his constitutional claim .
CONCLUSION
In sum, CR 7.02(3) provides for subpoenas duces tecum to permit pretrial inspection of evidence to be admitted at trial. It is not meant to be a discovery device, however, and does not permit the subpoenaing of materials in the mere hope that they will prove evidentiary. Because House’s CMI subpoena demanding production of the Intoxilyzer’s source code was based on nothing more substantial than the conjecture that there might be material flaws in the code, the subpoena was “unreasonable” for the purposes of the rule, and the Court of Appeals erred by requiring that it be enforced .

 

Accordingly, we reverse the January 18, 2008 Opinion of the Court of Appeals and thereby reinstate the Fayette District Court’s September 1, 2006 Order quashing House’s CMI
subpoena and its October 26, 2006 Agreed Order providing for House’s conviction in the event his appeal of the subpoena issue was unsuccessful .
All sitting. All concur.
COUNSEL FOR APPELLANT:
Jack Conway
Attorney General of Kentuc
Perry Thomas Ryan
Assistant Attorney General
Office of Attorney General
Criminal Appellate Division
1024 Capital Center Drive
Frankfort, KY 40601-8204
COUNSEL FOR APPELLEE:
Harold Lewis Kirtley 11
Thomas Dulaney Bullock
Bullock 8& Coffman, LLP
234 N. Limestone
Lexington, KY 40507-1027
COUNSEL FOR AMICUS CURL4E, CMI, Inc .
Allen W. Holbrook
Sullivan, Mountjoy, Stainback & Miller, PSC
100 St. Ann Building
P. 0. Box 727
Owensboro, KY 42302-0727

Judicial Nominating Committee for Jefferson County Announces Nominees to fill three vacant judgeships

Thursday, August 27th, 2009

FRANKFORT, Ky. – The Judicial Nominating Commission, led by Chief Justice of Kentucky John D. Minton Jr., today announced the nominees to fill three vacant judgeships that serve Jefferson County. The nominees are for the vacant circuit judgeship in the 30th Judicial Circuit, Division 11, and the vacant district judgeships in the 30th Judicial District, Divisions 7 and 9. The JNC selects three nominees for each judgeship.

Nominees for 30th Judicial Circuit, Division 11
The three nominees to fill the Circuit Court vacancy are Judge Angela McCormick Bisig and attorneys Brian Clifford Edwards and Robert S. Silverthorn Jr. The Circuit Court judgeship was left vacant by Judge Geoffrey P. Morris, who resigned Jan. 15, 2009, to join the Senior Judges Program.

Angela McCormick Bisig is currently serving as a Jefferson County District Court judge. She earned her juris doctor at the University of Louisville Louis D. Brandeis School of Law.
 
Brian Clifford Edwards is a solo practitioner with Brian C. Edwards, Attorney at Law, an assistant professor in the U of L Department of Pan-African Studies and associate director of the U of L Center for the Study of Crime and Justice in Black Communities. He holds a juris doctor from the University of Kentucky College of Law.
 
Robert S. Silverthorn Jr. has been practicing with Silverthorn Law Office since 1993. He earned his juris doctor from the U of L Louis D. Brandeis School of Law.
 
Nominees for 30th Judicial District, Division 7
The three attorneys named as nominees to fill this District Court vacancy are William Henry Mooney, Angela Christine Ward and Jennifer Bryant Wilcox. This District Court judgeship was left vacant by Judge William P. Ryan Jr., who resigned Jan. 5, 2009, to join the Senior Judges Program.
 
William Henry Mooney is currently affiliated with Lynch, Cox, Gilman & Mahan, P.S.C., in Louisville. He earned a juris doctor from the U of L Louis D. Brandeis School of Law.
 
Angela Christine Ward is currently associated with a specialized prosecution unit in the Office of the Jefferson County Attorney. She earned a juris doctor from the UK College of Law. 
 
Jennifer Bryant Wilcox is Division Chief of Trial Division A in the Office of the Commonwealth’s Attorney in Jefferson County. She earned a juris doctor from the UK College of Law.

Nominees for 30th Judicial District, Division 9
The three attorneys named as nominees to fill this District Court vacancy are Wanda Mitchell Baker, Sheila Berman and David L. Holton. This District Court judgeship was left vacant by Judge Janice R. Martin., who resigned Jan. 5, 2009, to join the Senior Judges Program.
 
Wanda Mitchell Baker is currently serving as chief operating officer for the Jefferson County Office of Circuit Court Clerk. She holds a juris doctor from the University of Virginia Law School in Charlottesville, Va.

Sheila Berman is a solo practitioner who works in association with the Haddad Law Office. She earned a juris doctor from the U of L Louis D. Brandis School of Law.
 
David L. Holton is currently an assistant Jefferson County attorney with the Office of the Jefferson County Attorney. He previously served as a judge for Jefferson County District Court. Holton earned a juris doctor from the UK College of Law.
 
Judicial Nominating Process
When a judicial vacancy occurs, the executive secretary of the Judicial Nominating Commission publishes a notice of vacancy in the judicial circuit or the judicial district affected. Attorneys can recommend someone or nominate themselves. The names of the applicants are not released. Once nominations occur, the individuals interested in the position return a questionnaire to the Office of the Chief Justice. Chief Justice Minton then meets with the Judicial Nominating Commission to choose three nominees. Because the Kentucky Constitution requires that three names be submitted to the governor, in some cases the commission submits an attorney’s name even though the attorney did not apply. A letter naming the three nominees is sent to Gov. Steve Beshear for review. The governor has 60 days to appoint a replacement, and his office makes the announcement.
 
Composition of the Judicial Nominating Commission
The Judicial Nominating Commission is established in the Kentucky Constitution. Ky. Const. § 118; SCR 6.000, et. Seq. The commission has seven members. The membership is comprised of the chief justice of Kentucky (who also serves as chair), two lawyers elected by all the lawyers in their circuit/district and four Kentucky citizens who are appointed by the governor. The four citizens appointed by the governor must equally represent the two major political parties, so two must be Democrats and two must be Republicans. It is the responsibility of the commission to submit a list of three names to the governor and the governor must appoint a judge from this list of three.

Rep. Robin Webb Gives Gov. Beshear a Big Win In l8th. Senatorial District Special Election

Tuesday, August 25th, 2009

Democrat Robin Webb has won by a narrow margin (282 VOTES) over Republican Jack Ditty in the Kentucky 18th District Senate seat in Tuesday’s special election

SPECIAL ELECTION RESULTS August. 25, 2009


[R] Jack Ditty: 8,402 (46.6%)
[D] Robin Webb: 8,684 (48.1%)
[I] Guy Gibbons Jr. 953 (5.3%)
(6 out of 6 counties reporting)

U.S. Supreme Court – Actual Innocence Doctrine Gains Favor –Scalia /Thomas Dissent

Tuesday, August 25th, 2009

Quoting the L.A. Times August 25, 2009

 “Whatever their views about capital punishment, most Americans probably assume that a convicted defendant will be released from prison if he can prove that he didn’t commit the crime. In fact, the Supreme Court has stopped short of endorsing what lawyers call the “actual innocence” doctrine. But an unexpected order in a Georgia death penalty case may indicate that the justices are coming around to a common-sense view about the due process of law.

Last week, they ordered a federal court in Georgia to reconsider the case of death row inmate Troy Anthony Davis, convicted of murdering an off-duty police officer 18 years ago. Since then, seven prosecution witnesses have recanted their testimony, and dignitaries including former President Carter, Archbishop Desmond Tutu and Pope Benedict XVI have pleaded for clemency, with the pope’s representative providing Georgia officials with a detailed critique of the evidence used to convict Davis.

The court said a lower court should “receive testimony and make findings of fact as to whether evidence that could not have been obtained at the time of trial clearly establishes petitioner’s innocence.”

In dissenting from the order, Justice Antonin Scalia (joined by Justice Clarence Thomas) complained that the court “has never held that the Constitution forbids the execution of a convicted defendant who had a full and fair trial but is later able to convince a habeas court that he is ‘actually’ innocent.” The dissenters are right about the history of the actual innocence doctrine, which is one reason the ruling in favor of Davis is so surprising.

In June, the court refused to hold that a convicted defendant in an Alaska case had a right to a DNA test that might clear him. Chief Justice John G. Roberts Jr. noted that 46 states already provide such access, but he also cavalierly contended that a state’s refusal to afford a prisoner DNA testing didn’t offend “some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.”

It’s hard to imagine a legal right more fundamental than the opportunity to prove one’s innocence, especially when the alternative is execution. If the reprieve for Davis indicates the court’s acceptance of that principle, he is not the only winner in this case.”

Three Franklin County Attorneys Nominated to Governor for Family Court Position – They are Roy Church Gray III, Rex Lee Hunt and Squire Needham Williams III.

Thursday, August 20th, 2009

August 20, 2009

FRANKFORT, Ky. – The Judicial Nominating Commission, led by Chief Justice of Kentucky John D. Minton Jr., today announced the nominees to fill the vacant Family Court judgeship in the 48th Judicial Circuit, Division 3, which serves Franklin County.

The three attorneys named as nominees to fill the vacancy are Roy Church Gray III, Rex Lee Hunt and Squire Needham Williams III.

The Family Court judgeship was left vacant by Judge Reed Rhorer, who resigned Jan. 31 to join the Senior Judges Program.

Nominees

Roy Church Gray III is an attorney in private practice at Roy Gray Law Office. He earned his juris doctor at Florida State University College of Law, graduating in 1982.

Rex Lee Hunt is an attorney with McBrayer, McGinnis, Leslie & Kirkland and with the Franklin County Attorney’s Office. He earned his juris doctor at the University of Louisville Louis D. Brandeis School of Law, graduating in 1980.

Squire Needham Williams III is a partner with the law firm Hazelrigg & Cox. He earned his juris doctor at the Northern Kentucky University Salmon P. Chase College of Law, graduating in 1999.

Courts and Legislatures scramble to defeat confrontation clause rights upheld in Melendez-Diaz v. Massachusetts

Thursday, August 20th, 2009

The right to confront your accuser is a constitutional right, and the U.S. Supreme Court has recently held that this includes the right to cross-examine forensic crime lab experts.  Some states have interpreted this ruling to require an expert who monitors the proper working condition of BA machines to be available at trial to testify and to disallow the practice of submitting written reports.

This ruling has inflamed DUI crusaders, and they are already seeking ways to create a work around to avoid the U.S. Constitution.  Our judges and legislators all take an oath to ”protect” the constitution …then why are they working so hard to violate their oaths?

The following article is excerpted from the Washington Post:

RICHMOND, Aug. 19, 2009 — The Virginia General Assembly voted Wednesday to drop a legal requirement that prosecutors prove that breath machines in drunken driving cases have been tested and are accurate, and lawmakers also established a timetable for defendants to challenge scientific evidence in criminal cases.

The emergency changes to state law will be effective as soon as Gov. Timothy M. Kaine (D) signs the bill.

The legislation emerged from a special session convened by Kaine to address a U.S. Supreme Court ruling in June that threw Virginia’s criminal justice system into an uproar. The Supreme Court, in the landmark Melendez-Diaz v. Massachusetts case, ruled that certificates of analysis, such as drug examinations or blood alcohol tests, are subject to cross-examination under the constitutional right to confront one’s accuser. Simply submitting a piece of paper was not sufficient, the court said.

Defense attorneys began demanding that the state’s 43 drug examiners appear in court to testify about their analyses and that prosecutors subpoena the three technicians who calibrate all of the state’s breath-testing machines as well. When the examiners or technicians couldn’t appear, judges sometimes threw out the cases.

In drug cases, the state Department of Forensic Sciences said, examiners were subpoenaed 43 times in July 2008 and 925 times this July. Legislators and experts agree that the best way to resolve the problem is to hire more examiners. But money is short — a fact underlined by Kaine’s announcement Wednesday of another budget shortfall — so legislators sought only an interim fix before the next full legislative session in January.

The Supreme Court ruled that states such as Virginia, by requiring a defendant to subpoena the prosecution’s experts to challenge a paper certificate, wrongly shifted the burden of proof from the prosecution to the defense. So the General Assembly on Wednesday created a scheme in which commonwealth’s attorneys must notify a defendant at least 28 days before trial that they intend to use a scientific analysis of alcohol, drugs, DNA, blood or other evidence. The defendant then has 14 days to object to prosecutors’ use of an analysis without a testifying witness.

If the defense objects, prosecutors must present the analyst in court as a witness. If the defense doesn’t object, the paper analysis can be introduced without live testimony.

That change shifts the burden of proof back to prosecutors to comply with Melendez-Diaz; it doesn’t solve the problem of dealing with defense demands for live testimony. But requiring advance notice from the defense might enable prosecutors and the Department of Forensic Sciences to schedule witnesses more efficiently. The revised law also grants prosecutors the right to continue cases, giving them more time to get their witnesses to the courthouse.

The most time-consuming part of the special session dealt with drunken driving cases, and Virginia’s requirement that prosecutors prove that breath-testing machines have been calibrated within the preceding six months. Legislators agreed to delete that requirement, making it a Forensic Sciences Department regulation instead. The change is intended to turn calibration records into “non-testimonial records,” which can be presented in court without supporting testimony.

Defense lawyers may still challenge the accuracy of the breath machines, most of which now have a feature that prevents them from printing a breath-test result if they haven’t been inspected for six months, state officials said. But proving that the machines are accurate will no longer be the prosecution’s responsibility.

“We are eroding protections that we put in the code . . . because of Melendez,” protested Sen. Kenneth W. Stolle (R-Virginia Beach). “We are shifting the statute around so [defendants] do not have the right to confront that witness.”

Mark E. Rubin, counselor to Kaine, responded: “You have the ability to confront the witness. It’s just that you [the defendant] have to call them.”

Neil S. Vener, the commonwealth’s attorney for Campbell County and head of the statewide prosecutors association, said, “I think the concern is unwarranted.” He noted that the state’s breath machines are programmed to fail if not inspected.

He added, “The reality is every single judge in the commonwealth, if presented evidence that the machine was not working properly, would exclude the [blood alcohol] certificate, regardless of when it comes into evidence.”

Defendants, then, might still subpoena the records of an individual breath-testing machine and the technician who maintained it, and so the demands on the three technicians to appear in court might still be high.

“We do not believe the bill takes care of all the problems arising from Melendez-Diaz,” House Majority Leader H. Morgan Griffith (R-Salem) said.

Griffith said that calibration of laser equipment in speeding cases could pose similar problems and that legislators would be monitoring rulings by district and circuit court judges to see how they interpret Melendez-Diaz.

Prosecutors and some judges have pointed to a footnote in the ruling, written by Justice Antonin Scalia, that “documents prepared in the regular course of equipment maintenance may well qualify as non-testimonial records.”

Interview with Dean Ault, Eastern Kentucky University on Capital Punishment

Wednesday, August 19th, 2009

Here is a compelling interview with Dr. Allen Ault on his views of the death penalty made from his vantage point as a former prison warden, state corrections commissioner, psychologist (phd) and now dean. After our meeting last Friday, he authorized its release.

http://www.justice.eku.edu/courses/cor320/video/COR320_DeanInterview.html

SurveyUSA Poll shows 8 Point Lead by Mongiardo in Dem. Senate Race – Greyson Leads in Republican Senate Race

Wednesday, August 19th, 2009

WHAS-TV’s Joe Arnold just reported live the following results from the first state-wide SurveyUSA poll on primary head-to-head races.  The whole poll will probably be posted later tonight

State-wide Dems

Mongiardo – 39%

Conway – 31%

By Telephone Area Code:

270 – Mongiardo 2 to 1   (Western Ky.)

502 – Conway by 17%    (Louisville)

859 – close to even        (No. Ky.-Lexington)

606 – Mongiardo 4 to 1   (Eastern Ky.)

 State-wide Repubs:

Grayson – 37%   -  Paul – 26%

AOC SETTLEMENT WITH CODELL CONSTRUCTION ALLOWS COURT HOUSE PROJECTS FOR CARLISLE, HANCOCK, MERCER and WHITLEY counties TO COMMENCE.

Tuesday, August 18th, 2009

Aug. 18, 2009

FRANKFORT, Ky. – Construction on judicial center projects in four Kentucky counties can commence immediately based on a settlement agreement finalized today by the Administrative Office of the Courts and Codell Construction Company of Winchester, Ky. Under the terms of the agreement, Codell has provided 100 percent Performance and Payment bonds for projects under way in Carlisle, Hancock, Mercer and Whitley counties.

Under the agreement, Codell will furnish 100 percent Performance and Payment bonds for eight additional projects when they reach Phase D construction. Those eight projects are in Allen, Breckinridge, Campbell, Franklin, Owen, Pike, Todd and Wolfe counties. Codell has already furnished Performance and Payment bonds for 7 percent of its fee for those projects.

“Codell Construction and the AOC had some legitimate business disputes with each other,” Chief Justice of Kentucky John D. Minton Jr. said. “As a result of this settlement agreement, we can put those issues in the past and work together going forward.”

“Codell is pleased to have resolved this matter,” said Jim Codell, president of Codell Construction. “Codell looks forward to building judicial centers that Kentuckians can be proud of for years to come.”

The settlement ends a dispute that began in March 2009 when Chief Justice Minton released a legal opinion by construction law attorney William G. Geisen of Graydon Head & Ritchey LLP in Fort Mitchell, Ky. The opinion found the AOC had allowed certain construction managers to furnish Performance and Payment Bonds that were legally insufficient. Chief Justice Minton called for immediate action to ensure compliance with the AOC’s Administrative Procedures, which govern judicial center construction. He asked the county judge-executives to require the construction managers on their projects to immediately furnish a Performance and Payment Bond equivalent to 100 percent of the contract sum, with the owner as obligee.

“I asked for a legal review to ensure that all aspects of our court facilities construction program are in complete compliance with state statutes and our Administrative Procedures,” Chief Justice Minton said. “Today’s agreement demonstrates that we will bring the highest standard of ethics and careful stewardship of taxpayer dollars to these important projects.”

The document below provides specific details of the agreement:
Settlement Agreement 8-12-09.pdf

As the administrative and fiscal agent for the Judicial Branch of state government, the AOC provides oversight and administration of court facilities statewide in accordance with House Bill 734, which was passed by the 2000 General Assembly. The AOC also supports the activities of 3,800 court system employees, including the elected justices, judges and circuit court clerks.

Ky. Sup. Ct. Considers Plan to Release People Arrested for Minor Offenses -Plan could save $400,000 a Day

Monday, August 17th, 2009

The Kentucky Supreme Court has approved a proposal to test a cost-saving initiative that could allow people arrested for marijuana possession, prostitution and hundreds of other nonviolent crimes to avoid going to jail.

The Kentucky Supreme Court has approved a proposal to test the initiative in a handful of counties before deciding whether to expand it statewide.

Justice Will T. Scott said the move has the potential to save the state more than $400,000 a day in jail costs by allowing people arrested on any of more than 700 mostly obscure charges to immediately post bail and go home.

The Lexington Herald-Leader reported that prosecutors favor testing the initiative, saying it makes sense financially and poses no risk to public safety.

The State of California now spends more on their corrections system than they do on their educational system.  Kentucky will eventually face such a condition if the prisons and jails continue to fill up at current rates.

Justice “Killer” Keller Goes on Trial today in Texas. She is representative of Tough-on-Crime Appellate Judges

Monday, August 17th, 2009

 

Justice Sharon Keller, goes on trial today in Texas on ethics charges including the allegation that she refused to leave her office open past 5 p.m. when attorneys were attempting to file a last minute motion that could have delayed their clients execution.  Keller, who is called “Killer” Keller by some in Texas, denies the charge and says she was only asked by an employee if the office should stay open past closing time and that she didn’t know of the attempted appeal.  She also claims that another judge was on duty to receive such appeals.  Nevertheless, she is charged with several ethical violations and could lose her license to practice law which would result from her removal from the appellate bench.  Justice Keller is well known in Texas for her anti-defendant opinions.

Keller drags Texas Justice System through the mud

Editorial TEXAS JUSTICE SYSTEM  – Statesmen.com  -  Monday, August 17, 2009

No matter the outcome of the hearing scheduled to begin today that could end in sanctions against embattled Texas Court of Criminal Appeals Chief Justice Sharon Keller, her already battered reputation will be pounded some more. While the judge’s many detractors will find some satisfaction in that, the Texas way of administering criminal justice also will take a beating.

A politician’s reputation is insignificant in the grand scheme of things, but if a society claims to be one based on law, then its justice system is only as good as the confidence in it.

Beyond the question of whether Keller’s handling of a last-minute death row appeal was legally appropriate is the much larger question of whether criminal appeals in Texas are handled objectively and whether the state’s court of last resort in criminal cases is in reality nothing more than a state agency dedicated to upholding convictions.

Texas has always relished its “tough on crime” reputation. Politicians who campaign against crime always find a friendly crowd, and Keller jumped on that and rode pro-prosecution rhetoric to a seat on what should be an objective forum for hearing appeals. But promising fairness is boring and doesn’t get you on television.

Keller — and by extension, the state’s justice system — has been the subject of hours of air time, gallons of ink and enough bytes of electronic information to operate a fleet of spaceships as a result of the case that has led to today’s proceedings before the State Commission on Judicial Conduct.

A brief background: Lawyers for convicted killer Michael Richard tried to file a last-minute, after-hours appeal in 2007. According to Richard’s lawyers, they were having computer problems and asked if they could file motions after 5 p.m. They said they were told “no.”

Keller’s lawyer disputes that now-famous reply. Furthermore, he claims that defense lawyers are to blame for Richard not getting a hearing.

Only two months after his release from a second prison term in 1986, Richard raped, shot and killed Marguerite Lucille Dixon, 53, a nurse and mother of seven, inside her Harris County home. Richard won a second trial after pleading that he was abused as a child and possessed an IQ well below average. Tried again, he was convicted again in 1995 and sentenced to death.

The last-minute appeal was based on the U.S. Supreme Court’s announcement earlier that same day that it would hear a case (from Kentucky) arguing that death by injection violates the Constitution because it constitutes cruel and unusual punishment.

Keller’s critics say closing the Texas Court of Criminal Appeals to the appeal was callous. The state’s Commission on Judicial Conduct filed a list of more legal complaints against Keller in connection with the Richard case.

The he-said, she-said nature of the depositions doesn’t hold much promise for shedding light on the situation but offers a rare glimpse into the court’s inner workings. However repugnant some may find it, the hearing ought to be considered mandatory viewing.

Some commentators predict that the worst that will happen is that Keller will end up with a slap on the wrist once it’s all said and done.

If so, that slap on the wrist will result in yet another black eye on a Texas justice system that is supposed to be blind

Diet Drug Lawyers Gallion and Cunningham to be Sentenced August 17th. – Appeal Imminent

Saturday, August 15th, 2009

Laura Voorhees, the Deputy U.S. Attorney who prosecuted William Gallion and Shirley Cunningham announced that she is seeking 35 years imprisonment for Gallion and 30 years for Cunningham.  Considering their current age, this amounts to a life sentence.

 Reports from the defense camp indicate that both parties plan to file appeals of their conviction.  One issue being discussed by members of the bar familiar with the case suggest that one issue that is almost certainly to be raised on appeal is the ruling of U.S. District Judge Danny Reeves that allowed an expert witness for the Government to testify but denied the right for the defendants to call an expert on the same topic.

 The Courier-Journal reported on Aug. 13th. numerous comments by angry members of the class action defrauded by the two Lexington attorneys.  The comments present the suggestion that many of the 440 plaintiffs in the class action were denied medical treatment due to the reduced settlements they received when the attorneys paid themselves more than they were supposed to.

 Evidence presented in the civil trial indicated that all 440 plaintiffs signed two settlement agreements where they stated they were satisfied with the amount of money they received.  Those settlement statements were presented to the court who approved the settlement.

 Many of the 440 plaintiffs were unable to present evidence of any injury sustained from the use of the Phen Fen diet drug which formed the basis for the $200 million dollar settlement.  Some of the plaintiffs had been seriously injured by the drug. 

 An expert mediator was appointed in the class action civil case to determine the injury of each plaintiff and he recommended different amounts based on the reported injuries.  When he finished with his evaluation millions of dollars were left over.  Twenty million of this went in to a charitable trust authorized by the Cy Pres Doctrine often used to dispose of excess class action settlement funds.   The Civil Trial Judge has seized the money placed in the Charitable Trust.   No decision has been made yet on how these funds will be distributed among the 440 plaintiffs.  It would appear unfair to give each plaintiff 1/440th of the seized funds, as some claimants had real injuries, but many had no symptoms or injuries.

 An appeal in the Civil Case, is likely due to a number of procedural issues and legal issues which have not been finalized in the Civil Case which is being heard by Special Judge Roger Crittenden.   It is assumed that Judge Crittenden will finalize the Civil Case in the Boone Circuit Court after the termination of the Criminal case in Federal Court.

 One basic issue in the Civil case is the timeliness of the filing of the civil case, as the plaintiffs appeal time had run, and they had accepted their settlements.  The finality of court rulings is a looming issue that has largely been overlooked, but is likely to be raised on an appeal in the civil case.

 This case is likely to continue for years.

Judge Susan Gibson Dismisses Coach’s Indictment Due to Failure of Commonwealth to Notify Grand Jury of His Request to Testify – Grand Jury Not Required to Grant Such Request But Must be Informed by Commonwealth.

Saturday, August 15th, 2009

August 13, 2009

 Jefferson Circuit Judge Susan Schultz Gibson this week dismissed an indictment against Pleasure Ridge Park High School Coach Jason Stinson.  The Commonwealth had failed to advise the Grand Jury that heard the indictment handed down last week, that Stinson had requested that the Grand Jury allow him to appear and testify before them.

 The Commonwealth admitted they had not disclosed the Coach’s request to appear before the Grand Jury, but said that request only applied to the original panel that indicted him, and that the most recent indictment for Wanton Endangerment was issued by a new Grand Jury and the request had not been restated.

 Judge Gibson did not buy that argument.   The Commonwealth can still go back and present another request to the Grand Jury, but for the moment this indictment is dismissed.

 Criminal Rule 5.08  grants the defendant the right to request an appearance before the Grand Jury that indicts him/her. 

 While the Defendant may request that the Grand Jury hear his testimony before an indictment is considered, there is no obligation for the Grand Jury to grant the request. 

 RCr 5.08 Evidence for defendant

If the defendant notifies the attorney for the Commonwealth in writing of his or her desire to present evidence before the grand jury, the attorney for the Commonwealth shall so inform the grand jury. The grand jurors may hear evidence for the defendant but are not required to do so.

HISTORY: Amended by Order 98-3, eff. 3-1-99; prior amendment eff. 9-1-81 (Order 81-5); adopted eff. 1-1-63

  Pankey v. Com., 485 S.W.2d 513 (Ky., 1972)

 “The appellants also claimed error in that they were not permitted to appear as witnesses before the grand jury which indicted them. We do not find in the record a request on their part that they be permitted to appear before the grand jury but in any event the denial of such a request would not have been error. It is not the function of the grand jury to determine guilt or innocence but only to determine whether the evidence offered by the state is sufficient to warrant putting the accused to trial. The accused has no constitutional right to appear as a witness before the grand jury or to examine other witnesses who appear. 38 C.J.S. Grand Juries §39.”

 Stopher v. Commonwealth, 2001 KY 247 (KY, 2001)

First, Appellant urges this Court to declare unconstitutional that part of RCr 5.08 which provides: “If the defendant notifies the attorney for the Commonwealth in writing of his desire to present evidence before the grand jury, the attorney for the Commonwealth shall so inform the grand jury. The grand jurors may hear evidence for the defendant but are not required to do so.”

 Appellant argues that requiring a defendant to go through the Commonwealth’s attorney, the adversarial party, in order to present evidence to the grand jury is a constitutional violation. Appellant cites no authority for his position, and we are of the opinion that since the Commonwealth is charged with assisting the grand jury, it is, in fact, the appropriate party to inform the grand jury that a defendant wishes to present evidence. RCr 5.41. There is no constitutional right to appear before the grand jury; RCr 5.08 is an indulgence of this Court. We find no distinction for a capital case.

Federal Judges complain that Congress and the Supreme Court have raised daunting barriers for death row prisoners to appeal their convictions

Saturday, August 15th, 2009

 

New York Times  August 13, 2009

It took just 80 words for a federal appeals court to deny Kevin Cooper’s most recent plea to avoid execution. But attached to that order was a forceful 101-page dissent by a judge, all but pleading to spare Mr. Cooper’s life.

Skip to next paragraph  “The State of California may be about to execute an innocent man,” it began.

The judge who wrote the dissent, William A. Fletcher of the United States Court of Appeals for the Ninth Circuit, in San Francisco, argued that the police and prosecutors had withheld and tampered with evidence in the case for decades; Judge Fletcher even accused the district court of having sabotaged the case.

Compared with the dry, mannerly prose found in many opinions, Judge Fletcher’s passion in Cooper v. Brown is startling. But these kinds of fervent, lonely dissents, urging that a prisoner’s life be spared, have noticeably increased in the last decade, compared with previous years, according to a review of death penalty opinions by The New York Times, as confirmed by experts in the field.

In dozens of capital cases in recent years, appeals court judges, some of whom have ruled in favor of the death penalty many times, have complained that Congress and the Supreme Court have raised daunting barriers for death row prisoners to appeal their convictions, and in many cases the judges have taken on their colleagues.

“There is an increasing frustration among federal judges throughout the system,” said Eric M. Freedman, a critic of the death penalty who teaches on the subject at Hofstra Law School.

Mr. Freedman predicted that the level of dissatisfaction would increase. “Judges are likely to have less and less patience for being hogtied by legalistic mumbo-jumbo,” he said, “which prevents them from reaching fair results.”

The law that generates much of the judges’ ire is the Antiterrorism and Effective Death Penalty Act of 1996. Since its passage, the act has been cited in a half-dozen to two dozen dissents a year, often in language forceful enough to rival Judge Fletcher’s. The law, championed by legislators who believed prisoners were abusing the federal appeals process, restricts federal court review of state court decisions in death penalty cases and puts strong limits on the ability of condemned prisoners to file habeas corpus petitions to get their cases reconsidered.

In April, Judge Rosemary Barkett of the United States Court of Appeals for the 11th Circuit, in Atlanta, complained of the law’s “thicket of procedural brambles.” Dissenting from a decision by her colleagues, Judge Barkett noted that seven of the nine witnesses in the murder trial of Troy Davis, a death row inmate in Georgia, had recanted their testimony. To execute Mr. Davis without fully considering that evidence would be “unconscionable and unconstitutional,” wrote Judge Barkett, who has voted in more than 200 other cases to uphold the death penalty.

Judge Stephen Reinhardt of the Ninth Circuit, a critic of capital punishment, took on the constitutionality of the 1996 death penalty act itself in a dissent in the case of Andrew C. Crater, who had been convicted of taking part in a robbery and shooting spree that killed a Sacramento musician, James Pantages. Judge Reinhardt, appointed by President Jimmy Carter, wrote in 2007 that the act made “a mockery of the careful boundaries between Congress and the courts that our Constitution’s framers believed so essential to the prevention of tyranny.”

The dissents rarely have any practical effect in changing the outcome of the cases they address. But Howard J. Bashman, an appellate lawyer in Philadelphia, said such dissents were often directed toward audiences to come: the next appeals court, lawmakers and academics.

“You have to think that these judges do have some valid reason for putting all this effort into the exercise than just feeling better about it after they’re done,” Mr. Bashman said.

Judge Barkett, whom President Bill Clinton appointed, declined to discuss individual cases but agreed that a dissent tried to persuade many audiences — the first, in her case, being the other judges of her court, who circulate dissents among themselves as they are coming to a decision.

Judge Barkett said she did not see her opinions as “emotive,” adding that dissents were about policy, not feelings. But the feeling that motivates her to write them, she said, is “mostly frustration that I cannot make people see what I see.”

Judge Fletcher’s frustration was on display in the case of Mr. Cooper, who he concluded was “probably innocent” of the 1983 murders of Douglas and Peggy Ryen, their 10-year-old daughter Jessica and an 11-year-old houseguest, Christopher Hughes, who were hacked to death in the Ryens’ home.

Judge Fletcher argued that the evidence had been tainted by bumbling and misconduct and suggested that blood linking Mr. Cooper to the crime had been planted by overzealous investigators. And while the Ninth Circuit in 2004 ordered new DNA tests, Judge Fletcher wrote that the lower court had set conditions rendering the results useless. “There is no way to say this politely,” he wrote. “The district court failed to provide Cooper a fair hearing and flouted our direction to perform the two tests.”

Judge Fletcher, who declined to be interviewed, was appointed by Mr. Clinton.

Jesse H. Choper, a law professor at the University of California, Berkeley, said the judge was hardly a fierce opponent of capital punishment. “I don’t see him as someone who is unexceptionally opposed,” Mr. Choper said.

In the Cooper case, Chief Judge Alex Kozinski, appointed by President Ronald Reagan, was among 11 of the circuit’s 27 judges who joined dissents.

Elisabeth A. Semel, director of the Death Penalty Clinic at Berkeley, which trains lawyers to defend people facing the death penalty, said many jurists had been shaken by the rise of exonerations due to DNA evidence. “I think it’s been shattering to judges who had a fair amount of confidence in the system,” she said.

The next step in the Cooper case is a long-shot appeal to the Supreme Court, which Mr. Cooper’s lead lawyer, Norman C. Hile, said was likely to be filed this year.

Kent Scheidegger, the legal director of the Criminal Justice Legal Foundation, a group in Sacramento that favors the death penalty, said substantial claims of innocence in such appeals remained rare.

In Mr. Cooper’s case, Mr. Scheidegger said, the defendant has been given ample opportunity to exonerate himself. “It is high time to bring this case to a close,” Mr. Scheidegger said.

Judge Fletcher argued otherwise. “If he is innocent, the real killers have escaped,” he wrote. “They may kill again. They may already have done so.

“We owe it to the victims of this horrible crime, to Kevin Cooper, and to ourselves, to get this one right.”

Appellate Judges’ Dissents for Death Row Inmates Are Rising – “California about to execute an innocent man.”

Friday, August 14th, 2009

New York Times By JOHN SCHWARTZ  August 13, 2009

It took just 80 words for a federal appeals court to deny Kevin Cooper’s most recent plea to avoid execution. But attached to that order was a forceful 101-page dissent by a judge, all but pleading to spare Mr. Cooper’s life.

Skip to next paragraph  “The State of California may be about to execute an innocent man,” it began.

The judge who wrote the dissent, William A. Fletcher of the United States Court of Appeals for the Ninth Circuit, in San Francisco, argued that the police and prosecutors had withheld and tampered with evidence in the case for decades; Judge Fletcher even accused the district court of having sabotaged the case.

Compared with the dry, mannerly prose found in many opinions, Judge Fletcher’s passion in Cooper v. Brown is startling. But these kinds of fervent, lonely dissents, urging that a prisoner’s life be spared, have noticeably increased in the last decade, compared with previous years, according to a review of death penalty opinions by The New York Times, as confirmed by experts in the field.

In dozens of capital cases in recent years, appeals court judges, some of whom have ruled in favor of the death penalty many times, have complained that Congress and the Supreme Court have raised daunting barriers for death row prisoners to appeal their convictions, and in many cases the judges have taken on their colleagues.

“There is an increasing frustration among federal judges throughout the system,” said Eric M. Freedman, a critic of the death penalty who teaches on the subject at Hofstra Law School.

Mr. Freedman predicted that the level of dissatisfaction would increase. “Judges are likely to have less and less patience for being hogtied by legalistic mumbo-jumbo,” he said, “which prevents them from reaching fair results.”

The law that generates much of the judges’ ire is the Antiterrorism and Effective Death Penalty Act of 1996. Since its passage, the act has been cited in a half-dozen to two dozen dissents a year, often in language forceful enough to rival Judge Fletcher’s. The law, championed by legislators who believed prisoners were abusing the federal appeals process, restricts federal court review of state court decisions in death penalty cases and puts strong limits on the ability of condemned prisoners to file habeas corpus petitions to get their cases reconsidered.

In April, Judge Rosemary Barkett of the United States Court of Appeals for the 11th Circuit, in Atlanta, complained of the law’s “thicket of procedural brambles.” Dissenting from a decision by her colleagues, Judge Barkett noted that seven of the nine witnesses in the murder trial of Troy Davis, a death row inmate in Georgia, had recanted their testimony. To execute Mr. Davis without fully considering that evidence would be “unconscionable and unconstitutional,” wrote Judge Barkett, who has voted in more than 200 other cases to uphold the death penalty.

Judge Stephen Reinhardt of the Ninth Circuit, a critic of capital punishment, took on the constitutionality of the 1996 death penalty act itself in a dissent in the case of Andrew C. Crater, who had been convicted of taking part in a robbery and shooting spree that killed a Sacramento musician, James Pantages. Judge Reinhardt, appointed by President Jimmy Carter, wrote in 2007 that the act made “a mockery of the careful boundaries between Congress and the courts that our Constitution’s framers believed so essential to the prevention of tyranny.”

The dissents rarely have any practical effect in changing the outcome of the cases they address. But Howard J. Bashman, an appellate lawyer in Philadelphia, said such dissents were often directed toward audiences to come: the next appeals court, lawmakers and academics.

“You have to think that these judges do have some valid reason for putting all this effort into the exercise than just feeling better about it after they’re done,” Mr. Bashman said.

Judge Barkett, whom President Bill Clinton appointed, declined to discuss individual cases but agreed that a dissent tried to persuade many audiences — the first, in her case, being the other judges of her court, who circulate dissents among themselves as they are coming to a decision.

Judge Barkett said she did not see her opinions as “emotive,” adding that dissents were about policy, not feelings. But the feeling that motivates her to write them, she said, is “mostly frustration that I cannot make people see what I see.”

Judge Fletcher’s frustration was on display in the case of Mr. Cooper, who he concluded was “probably innocent” of the 1983 murders of Douglas and Peggy Ryen, their 10-year-old daughter Jessica and an 11-year-old houseguest, Christopher Hughes, who were hacked to death in the Ryens’ home.

Judge Fletcher argued that the evidence had been tainted by bumbling and misconduct and suggested that blood linking Mr. Cooper to the crime had been planted by overzealous investigators. And while the Ninth Circuit in 2004 ordered new DNA tests, Judge Fletcher wrote that the lower court had set conditions rendering the results useless. “There is no way to say this politely,” he wrote. “The district court failed to provide Cooper a fair hearing and flouted our direction to perform the two tests.”

Judge Fletcher, who declined to be interviewed, was appointed by Mr. Clinton.

Jesse H. Choper, a law professor at the University of California, Berkeley, said the judge was hardly a fierce opponent of capital punishment. “I don’t see him as someone who is unexceptionally opposed,” Mr. Choper said.

In the Cooper case, Chief Judge Alex Kozinski, appointed by President Ronald Reagan, was among 11 of the circuit’s 27 judges who joined dissents.

Elisabeth A. Semel, director of the Death Penalty Clinic at Berkeley, which trains lawyers to defend people facing the death penalty, said many jurists had been shaken by the rise of exonerations due to DNA evidence. “I think it’s been shattering to judges who had a fair amount of confidence in the system,” she said.

The next step in the Cooper case is a long-shot appeal to the Supreme Court, which Mr. Cooper’s lead lawyer, Norman C. Hile, said was likely to be filed this year.

Kent Scheidegger, the legal director of the Criminal Justice Legal Foundation, a group in Sacramento that favors the death penalty, said substantial claims of innocence in such appeals remained rare.

In Mr. Cooper’s case, Mr. Scheidegger said, the defendant has been given ample opportunity to exonerate himself. “It is high time to bring this case to a close,” Mr. Scheidegger said.

Judge Fletcher argued otherwise. “If he is innocent, the real killers have escaped,” he wrote. “They may kill again. They may already have done so.

“We owe it to the victims of this horrible crime, to Kevin Cooper, and to ourselves, to get this one right.”

Court Appeals Allows Blood Test of Unconscious Defendant Suspected of DUI

Friday, August 7th, 2009

The Court of Appeals issued a decision on Friday August 7th. which held that a Blood Test ordered by police officer at hospital was admissible even though the officer testified that he filled out the consent form and he believed the defendant was unconscious.

 

The court held that no search warrant was required.  They based their ruling on the claim that all motorists have given their consent to blood tests due to KRS 189A.103  the implied consent statute.

 

The court said: “unconsciousness does not invalidate implied consent. KRS 189A.103(2).”

 

Section (2) of KRS 189A.103 says:

 

 “(2) Any person who is dead, unconscious, or otherwise in a condition rendering him or her incapable of refusal is deemed not to have withdrawn the consent provided in subsection (1) of this section, and the test may be given;”

 

This raises a question of liability of the medical personnel taking the blood test. 

Is the consent mentioned in KRS 189A.103 sufficient to negate the patient’s right to have informed consent for any medical procedure?

 

It is one thing to say that the results of a Blood Test are admissible into evidence, but it is another issue as to whether KRS 189A.103 overrides KRS 333.160 which limits who may take blood tests.

 

Further a blood test taken for evidentiary purposes is not the same as a blood test necessary for the treatment of the patient.

 

Some hospitals are refusing to perform blood tests for DUI purposes unless a prescription has been issued by a physician authorized to make medical decisions.

 

BLOOD TESTS MUST BE AUTHORIZED BY A PHYSICIAN:

 

Kentucky DUI law has been expanded by court rulings that allow EMT personnel in some instances to take a blood sample from a defendant charged with DUI. In common practice police also take defendants to hospitals and the nursing staff frequently takes a blood sample for use by the police without a doctor’s prescription (i.e. authorization).

 

We believe that any blood sample taken without a prescription (i.e. physicians authorization) is illegal. See KRS 333.160 which spells out “who may collect human specimens”. 

 

At the bottom of this report is a copy of the text of  “KRS 333.160 Who may collect human specimens.” 

 

This is justification for the argument that nurses and non-licensed physicians must be authorized by a physician before they can draw a blood sample. If a hospital allows such a procedure without the physician’s authorization they have violated this statute. 

 

A hospital in Paducah has refused to allow its nursing staff  take blood samples at the request of police officers in the absence of a physician’s authorization. We note that KRS 333.990 makes it a misdemeanor for anyone to take a blood sample without a physician’s authorization.

 

Any hospital or clinic that allows its personnel to take blood samples without a physician’s authorization is treading on thin ice and are subjecting themselves to liability for any injuries caused by the procedure (i.e. infection, damage to a nerve etc.).

 

 The penalty section of KRS Chapter 333 says:

 

KRS 333.990 Penalties.

The performance of any of the acts specified in KRS 333.240 or for violation of any other

provision of this chapter or of any rules and regulations of the board adopted hereunder

shall constitute a misdemeanor punishable, upon conviction, by a fine of not less than

$300 nor more than $500 or by imprisonment for not more than one (1) year, or by both

fine and imprisonment.”

 

 While court rulings have said that nurses and EMT personnel and phlebotomists may withdraw blood samples, the applicable statutes still require that they must be authorized to do so by a licensed physician. No court ruling has said that a blood test can be taken without a physicians authorization. 

 

It is one thing for the court to say that a blood test may be introduced into evidence, but it appears to be illegal if the blood specimen was taken without a physicians “authorization”.

 

We caution that admissibility of evidence and legality of how the evidence are obtained are legal issues which have not been clearly ruled on in Kentucky.

We are not aware of any appellate decision in which the court has clearly addressed the issue: Can a blood test obtained in violation of the law be admitted into evidence?

Stan Billingsley – LawReader

 

***

Definitions of surgery

Surgery is a medical technology consisting of a physical intervention on tissues. As a general rule, a procedure is considered surgical when it involves cutting of a patient’s tissues or closure of a previously sustained wound.

 

 

 

 

For full text of case click case number 2008-CA-001465

 

LAMONT ROBERTS

 

APPEAL FROM JEFFERSON CIRCUIT COURT

v. HONORABLE MARTIN F. MCDONALD, JUDGE

ACTION NO. 06-CR-004034

 

COMMONWEALTH OF KENTUCKY

 

Appellant argues that the police officers violated both his statutory and constitutional rights when they failed to acquire either his consent or a search warrant prior to the blood test

 

(Strong evidence suggests the defendant was unconscious at time officer “asked” for consent at hosptial.)

 

In light of the statutorily implied consent, the  Commonwealth herein did not have to prove

that Appellant voluntarily consented to the blood test. Clearly, there is no evidence of a “positive refusal” by Appellant to the test

 

KRS 189A.103 governs implied consent in DUI cases…The language “‘has given his consent’ makes it unmistakable that a suspected drunk driver must submit to a test to determine blood alcohol concentration.” Commonwealth v. Hernandez-Gonzalez, 72 S.W.3d 914, 915 (Ky. 2002). Further, unconsciousness does not invalidate implied consent. KRS 189A.103(2).

 

 

 

AFFIRMING

** ** ** ** **

BEFORE: DIXON AND KELLER, JUDGES; KNOPF, SENIOR JUDGE.

 

DIXON, JUDGE: Appellant, Lamont Roberts, was convicted in the Jefferson Circuit Court of second-degree manslaughter and driving under the influence

(DUI), 2nd offense. He was sentenced to seven and one-half years’ imprisonment and fined $500. He now appeals to this Court as a matter of right On December 18, 2006, Appellant was indicted by a Jefferson County

Grand Jury for murder, illegal possession of a controlled substance (cocaine), and DUI 2nd offense.

 

At the close of trial, Appellant was found guilty of second-degree manslaughter and DUI, 2nd offense. The jury recommended, and the trial court ultimately sentenced Appellant to a total of seven and one-half years’ imprisonment and fined him $500. This appeal ensued.

 

Appellant argues that the trial court erred by denying his motion to suppress the toxicology report showing the blood-alcohol results. Appellant argues that the police officers violated both his statutory and constitutional rights when they failed to acquire either his consent or a search warrant prior to the blood test. We disagree.

 

Officer Shoenlaub first testified that Appellant may have been unconscious at the time he attempted to have him sign the consent form.

 

Officer Shoenlaub then stated that he read the consent form to Appellant in the presence of the hospital chaplain, and that he believed Appellant consented by

nodding his head. Since Appellant was unable to sign his name at that time, Officer Shoenlaub checked off the appropriate boxes on the form

 

Officer Shoenlaub again conceded that Appellant may have slipped out of consciousness as he was attempting to gain his consent for the test

 

Certainly, Officer Shoenlaub presented conflicting testimony as to Appellant’s consent. However, we are of the opinion that such is essentially irrelevant because there is no evidence that Appellant expressly refused to submit to the test

 

KRS 189A.103 governs implied consent in DUI cases…The language “‘has given his consent’ makes it unmistakable that a suspected drunk driver must submit to a test to determine blood alcohol concentration.” Commonwealth v. Hernandez-Gonzalez, 72 S.W.3d 914, 915 (Ky. 2002). Further, unconsciousness does not invalidate implied consent. KRS 189A.103(2).

 

In light of the statutorily implied consent, the Commonwealth herein did not have to prove

that Appellant voluntarily consented to the blood test. Clearly, there is no evidence of a “positive refusal” by Appellant to the test. See Cook v. Commonwealth, 129

S.W.3d 351, 360 (Ky. 2004).

 

Because Officer Shoenlaub did not follow the dictates of KRS 189A.105, Appellant argues that the blood test should have been deemed inadmissible. Again, we disagree.

 

the Kentucky Supreme Court held in Beach v. Commonwealth, 927 S.W.2d 826, 828 (Ky. 1996),

Exclusion of evidence for violating the provisions of the informed consent statute is not required. It has been held

in Kentucky and elsewhere that in the absence of an explicit statutory directive, evidence should not be

excluded for the violation of provisions of a statute where no constitutional right is involved. See Little v.

Commonwealth, Ky., 438 S.W.2d 527 (1968). The Commonwealth cites a number of authorities from other

state and federal courts. We find the language of the Wisconsin Supreme Court to be persuasive.

 

Accordingly, we conclude that neither Appellant’s statutory or constitutional rights were violated. As a driver on the roads of Kentucky, Appellant is bound by the implied consent laws. As such, he is deemed to have consented to the blood test and the trial court properly admitted the toxicology report.

 

The judgment and sentence of the Jefferson Circuit Court are affirmed.

 

ALL CONCUR.

 

BRIEF FOR APPELLANT:

Gene Lewter

Department of Public Advocacy

Frankfort, Kentucky

 

BRIEF FOR APPELLEE:

Jack Conway

Attorney General of Kentucky

Christian K. R. Miller

Assistant Attorney General

Frankfort, Kentucky