Archive for September, 2009

Atheist Attorney Kagin Accuses Attorney General Conway of Wasting Taxpayers Money.

Saturday, September 5th, 2009

 Edwin Kagin, a Northern Kentucky attorney represents plaintiffs who challenged language added by the legislature to a Homeland Security bill which declared that the Homeland Security was dependent on “Almighty God” for the safety of Kentuckians.  Franklin County Judge Thomas Wingate on August 26, 2009, ruled that the inclusion of that language was unconstitutional as an establishment of religion.  The law required a plaque to be posted citing “Almighty God.”

 Conway, who is currently a candidate for the U.S. Senate seat to be vacated by Sen. Bunning, decided to appeal the Circuit Court ruling on the basis that the law in question “merely acknowledges religion” and does not try to “establish” it.

 Kagin said, “It’s disappointing the attorney general would want to protect a clearly unconstitutional law that attempts to establish a religion in Kentucky.”

 The Courier-Journal quoted Western Ky. University political scientist Scott Lasley as describing the appeal as a political ploy that political leaders in culturally conservative states can’t afford to concede.  “The reality of the situation is that for most attorney’s general that would be the end of their political careers.  It’s just the reality of the situation, given the political environment you’re operating in.”

Gov. Beshear names three to judgeships in Jefferson County.

Saturday, September 5th, 2009

 Brian Edwards was appointed to the Jefferson Circuit Court.  

 Former District Judge David Holton who was previously defeated for re-election by Judge Katie King was reappointed by Gov. Beshear to a District Court seat.

 Jennifer Bryant Wilcox, an Assistant Commonwealth Attorney was also posted to a District Court seat.

 

One vacancy remains unfilled on the Jefferson County bench

Indiana Police Apply Forced Catheterization In DUI Case To Obtain Urine Sample…

Friday, September 4th, 2009

LAWRENCEBURG, Ind. — An Indiana man has filed a lawsuit claiming that police forcibly withdrew blood and urine from his body during a drunken driving arrest, WLWT-TV reported.  The suit names the Lawrenceburg police department and Dearborn County Hospital, in addition to Miller and Dr. Ronald Cheek.

 According to the suit, police arrested Jamie Lockard, 53, on suspicion of drunken driving in March 2009.  A Breathalyzer test showed he was under the legal limit, but Officer Brian Miller doubted the findings.

 Lockard and his attorney claim in the suit that police took him to Dearborn County Hospital and forced him to submit to a urine and blood test.

 Lockard’s attorney said his client was shackled to a gurney and had a catheter inserted against his will.  The blood test showed that Lockard’s blood-alcohol level did not exceed Indiana’s legal limit, police said.   The police charged Lockard with obstruction of justice.

Calif. Opposes Federal Court Jurisdiction to Order Immediately Reduce Prison Population – Cites 1996 Prison Litigation Reform Act,

Thursday, September 3rd, 2009

The Schwarzenegger administration on Tuesday asked the federal courts to delay an order requiring California to reduce its inmate population over the next two years.

Last month, a special three-judge panel gave California 45 days to decide how it will cut the number of inmates in its 33 adult prisons by more than 40,000, bringing the population to about 110,000. They found that reducing the number of inmates in California’s 33 adult prisons was the only way to improve medical and mental health care, which the courts previously ruled was so poor it violated inmates’ civil rights.

The administration maintains that the courts cannot order the state to release prisoners and plans to file an appeal with the U.S. Supreme Court on Thursday.

Meanwhile, the administration wants the three-judge panel to stay its decision ordering the prisoner release. That motion was filed Tuesday with federal courts in Sacramento and San Francisco.

If the three California-based federal judges will not delay their order, Schwarzenegger spokesman Aaron McLear said the administration will seek a stay from the nation’s high court.

“We believe that the state is capable of reducing the prison population without the court intervening,” he said.

The administration is backing legislation that would cut the number of inmates in the state’s prisons by about 37,000 over two years by diverting more convicts to county jails or home detention. How much of that plan will survive the legislative process is unclear.

After a riot at a Southern California prison last month, Schwarzenegger blamed overcrowding for leading to a combustible and dysfunctional atmosphere inside the prison system. An advocate for inmates said the administration can’t have it both ways, criticizing the system while fighting changes ordered by the federal courts.

“To insist the court is wrong at the same time the governor is stating that the system’s collapsing under its own weight is inconsistent, to say the least,” said Don Specter, director of the Berkeley-based Prison Law Office, which sued the state because of concerns over prison medical treatment.

In Tuesday’s filing seeking a stay, the administration said a court-ordered inmate release could boost California’s crime rate by more than 6 percent. The administration also said the judges are ignoring current prison conditions, which they say have improved in recent years.

It says the order violates the 1996 Prison Litigation Reform Act, which restricts judges’ powers in inmate rights cases. Ordering inmates to be freed should be a “remedy of last resort,” according to the act.

The act requires a direct appeal to the U.S. Supreme Court, bypassing the usual appeals process. This is the first such case heading to the court.

The court accepts just 1 percent of appeals and usually chooses cases in which there is a conflict between lower court judges, said Erwin Chemerinsky, dean of the University of California, Irvine School of Law. In this case, the three judges were unanimous.

Yet, “I think the nature of the relief that the court has ordered, the state’s opposition to that relief and the judges on the panel all make it more likely that the court will grant review,” Chemerinsky said.

He said the three judges are considered to be liberals who ordered what he described as a dramatic reduction in the prison population.

Federal Judge Refuses To Handle Criminal Cases- growing concern among judges over the federalization of street crime.

Thursday, September 3rd, 2009

September 2, 2009 from WUWM

A federal judge in Milwaukee has taken the unusual step of refusing to accept new criminal cases and recusing himself from existing ones, in a move observers say is about politics, impropriety and, possibly, hurt feelings.

Federal Court Clerk Jon Sanfilippo says the way he sees it, the reason Judge J.P. Stadtmueller is refusing criminal cases “really springs from one case.”

Sanfilippo, the only person at the federal courthouse in downtown Milwaukee who was willing to talk about the situation, says it all started after a ruling in July by the 7th Circuit Court of Appeals. Prosecutors thought Stadtmueller showed bias in a gun case and took the rare move of asking the appeals court to remove him, which it did. Stadtmueller accused the U.S. attorney’s office of judge-shopping.

The judge declined repeated requests for interviews; neither his colleagues on the federal bench nor the interim U.S. attorney for Milwaukee would comment.

Sanfilippo says since that ruling, Stadtmueller stopped taking new criminal cases from the government and recused himself from 22 existing ones. He is still taking civil cases, however.

“He believes that he’s acting appropriately under the circumstances, trying to provide a situation where there’s no problem in terms of perception,” Sanfilippo says, “and as this has been unfolding, he’s been very adamant about making sure he has a full caseload.”

Frustration Over Types Of Cases

Before Stadtmueller was given a lifetime appointment to the federal bench in 1987, he ran the U.S. attorney’s office in Milwaukee. Over the years, he has criticized the type of cases his successors have brought to federal court.

When Stadtmueller was a prosecutor, most federal cases involved white-collar crimes. Now, there are many more gun and drug cases, and the judge’s frustration is apparent in court documents.

In taking Stadtmueller off the gun case, the appeals court ruled that he broke judicial rules by suggesting a plea bargain.

Stadtmueller had questioned the government’s decision to bring the case to federal court, calling it “an embarrassment to the justice system.” Documents also show Stadtmueller sought to avoid a conviction that would have sent the defendant to prison for at least 15 years.

‘A Better Way’

Robin Shellow, a criminal defense attorney in Milwaukee, says she has seen a growing concern among judges over the federalization of street crime.

“In virtually every criminal sentencing in a drug case, Judge Stadtmueller remarks on the number of people who are in federal prisons on that particular day,” she says.

Shellow says she has represented dozens of youths who were convicted of gun crimes and sent to prison for life.

“I think that has got to weigh heavily on judges who have been around for a long time and who are saying there’s got to be a better way,” she says.

But is that his job?

Janine Geske, a law professor at Marquette University and a former Wisconsin Supreme Court justice, says each judge has his or her own method of determining how best to achieve justice in the court.

“Judge Stadtmueller had the position in the U.S. attorney’s office, and I’m sure it’s tough when he sees things that he thinks, if he had been in that position, he would have done differently,” Geske says.

Amid the speculation, Stadtmueller has not publicly explained why he is passing on criminal cases.

This could go on for a while. All the federal criminal cases in Milwaukee are now distributed among three judges instead of four. Stadtmueller told the court clerk he will resume taking criminal cases once a permanent U.S. attorney for Milwaukee is appointed.

That, however, could be months away.

Boone Gallatin Judicial Nom. Committee Names Three

Tuesday, September 1st, 2009

FRANKFORT, Ky. – The Judicial Nominating Commission, led by Chief Justice of Kentucky John D. Minton Jr., today announced nominees to fill the vacant District Court judgeship in the 54th Judicial District, Division 1, which serves Boone and Gallatin counties.

The three attorneys named as nominees to fill the vacancy are Kimberely Jo Adams, Stephen Pearce Huddleston and Keith Allen McMain.

The District Court judgeship was left vacant by Judge Michael P. Collins, who resigned Oct. 10, 2008, to join the Senior Judges Program.

Nominees

Kimberely Jo Adams of Burlington was formerly associated with the firm Adams, Brooking, Stepner, Woltermann & Dusing in Covington. She earned her juris doctor at Northern Kentucky University Salmon P. Chase College of Law, graduating in 1985.

Stephen Pearce Huddleston of Warsaw has a private law practice in Warsaw. He earned his juris doctor at University of Louisville Louis D. Brandeis School of Law, graduating in 1976.

Keith Allen McMain of Burlington is a law partner in the firm Noyes, McMain & Hegge in Florence. He earned his juris doctor at Northern Kentucky University Salmon P. Chase College of Law, graduating in 1989.

N.C. Supreme Court Reverses Felony Firearms Act – Rules that 2nd. Amendment Permits Convicted Felons to Possess Gun

Tuesday, September 1st, 2009

 By KIM LAMBERT  For The Record

 According to a ruling Friday, the N.C. Supreme Court has deemed a 2004 law barring convicted felons from possessing a firearm — even in their homes — unconstitutional.

The state’s highest court ruled that the General Assembly went beyond its scope of duties in 2004 when it toughened restrictions on a felon owning guns.

 

The opinion, however, is only applicable to the case of Barney Britt, a convicted felon, whose right to own a gun in pursuit of his passion for hunting was revoked by the 2004 amendment.

 

Friday’s ruling was spearheaded by Justice Edward Thomas Brady who defended the felon’s right to own a gun.

 

According to Mr. Britt’s attorney, Dan Hardway of Angier, the ruling was significant because the N.C. Supreme Court ruled Mr. Britt constitutionally had the right to bear arms, despite restrictions which had been imposed by the state years earlier.

He said North Carolina has become the first state to uphold a convicted felon’s right to bear arms over state officials’ power to regulate gun ownership.

 

The implications from Friday’s ruling could be far-reaching. The decision could encourage more felons to sue for restoration of their Second Amendment right to own firearms.

 

Mr. Britt, 49, a lifelong Wake County resident, loved hunting and continues to hold the record for shooting the third largest deer in North Carolina.

Due to a misstep in judgment 29 years ago, however, Mr. Britt’s hunting was compromised.

 

Convicted on a felony drug charge when he was 20 years old, the avid sportsman was incarcerated for four months and not permitted to carry a gun for five years.

In 1987, Mr. Britt had his right to hunt reinstated after completing his sentence. Over the next 18 years, according to Mr. Hardway, “Mr. Britt was a law-abiding citizen.”

Mr. Hardway said his client “had no criminal charge lodged against him” and had been “gainfully employed since his release of incarceration.”

 

In 2004, however, the General Assembly amended state law, banning felons like Mr. Britt from possessing any type of firearm except for “antique weapons.”

The amended ruling was a slight departure from previous state law allowing felons to possess guns in their own homes or businesses “under particular circumstances.”

Mr. Britt had said, “I feel like I’m being violated and punished all over again.”

There was no appeals process, so he, under advisement from Mr. Hardway, sued the state to regain his Second Amendment right to hunt.

 

Mr. Britt challenged the constitutionality of the 2004 amendment, claiming it amounted to “ex post facto,” a Latin term meaning a retrospective increase in punishment. Mr. Hardway argued the amendment five years ago “deprived his client of his formerly restored right, punishing him for conduct that was previously not criminal.”

In the legal brief, Mr. Britt, as plaintiff, said the 2004 application of N.C. Gen. Statute § 14-415.1 “violated his right to due process, equal protection under state and federal constitutions and his Second Amendment right to bear arms.”

 

Justice Patricia TimmonsGoodson said, in a dissenting opinion, the decision could encourage challenges against state bans on felons and the insane owning firearms

Alaska Supreme Court Allows Science Evidence in DUI Cases

Tuesday, September 1st, 2009

9/1/2009

Alaska Supreme Court overturns law designed to stop presentation of medical evidence regarding alcohol absorption in DUI cases.

The Supreme Court of Alaska on Friday upheld the right of defendants to present scientific evidence at trial in cases involving driving under the influence of alcohol (DUI). In 2004, the state legislature sought to muzzle defense attorneys who cited medical evidence on alcohol absorption rates in a way that would have undermined conviction rates.

Douglas Valentine had challenged his own June 18, 2005 DUI arrest. Fairbanks Police Sergeant Dan Welborn initially pulled Valentine over that night for speeding but upon noticing his bloodshot eyes and a “moderate” odor of alcohol, Valentine was given a field sobriety test and brought in to the station for a breathalyzer reading. At 9:20pm, he blew a 0.099 on the machine. Twenty-five minutes later, the reading increased by 0.020 to 0.119.

Valentine argued that he had two beers before getting behind the wheel and that neither the field sobriety test nor his driving that night showed any evidence of impairment. Alaska Statute 28.35.030(s) prohibited Valentine from making the medical argument that at the time he was behind the wheel, the alcohol had not been absorbed into his bloodstream and his blood alcohol content (BAC) was under the legal limit of 0.08. The high court summarized the scientific evidence.

“Typically within an hour after a person has stopped drinking, the person’s body has absorbed much of the alcohol consumed and is eliminating alcohol from the bloodstream faster than it is absorbing it — that is, the point of ‘peak’ blood alcohol level has passed,” Chief Justice Dana Fabe wrote for the court. “But in some people this ‘peak’ point may not be reached for up to four hours after drinking because the rate at which the body absorbs alcohol depends on a variety of factors, including consumption of food, having an upset stomach, and the type of alcohol consumed. Therefore, it is possible that a person’s blood alcohol at the time of driving was lower than at the time the person took a post-arrest chemical test.”

The legislature specifically outlawed the delayed absorption defense in response to a 2002 court of appeals opinion, Conrad v. Alaska, where the argument had been successful. The high court on Friday found that this law undermined the constitutional right of a driver accused of DUI to defend himself.

“Under the United States and Alaska Constitutions, a defendant has the right to present relevant exculpatory evidence in a criminal trial,” Fabe wrote. “A defendant’s due process rights are denied when a legislative enactment substantially limits the right to present a defense.”

The Alaska Supreme Court, however, did approve another 2004 legislative change that has the effect of allowing automatic DUI convictions in nearly all cases. A separate provision of law allows anyone accused of having a blood alcohol level of 0.08 up to four hours after driving to be automatically convicted of DUI, regardless of whether he was sober while behind the wheel. This redefinition of the crime creates what California DUI Attorney Lawrence Taylor calls the “DUI exception to the Constitution.” In such cases, using science to prove sobriety can be excluded on grounds of irrelevance.

Because the lower court in Valentine’s case did not explicitly cite this exception, the supreme court overturned the conviction and ordered Valentine to stand for retrial.

A copy of the supreme court ruling is available in a 160k PDF file a the source link below.

Source: Valentine v. Alaska (Supreme Court of Alaska, 8/28/2009)