Archive for November, 2009


Monday, November 30th, 2009


WASHINGTON — The Supreme Court heard arguments Monday testing when whistle-blowers who discover fraud in federal programs may sue in the name of the United States and collect some of the settlement.

Congress adopted the False Claims Act during the Civil War to solicit the help of ordinary citizens in fighting contracting fraud. The law encourages whistle-blowers to sue on behalf of the U.S. government by ensuring that a portion of any damages or civil penalties won will be shared with the person who initiated the lawsuit.

Since Congress strengthened the law in 1986, the Justice Department has recovered about $20 billion, of which more than $2 billion has gone to citizens, Justice figures show. In recent decades, such suits have especially targeted Defense Department and health services fraud.

Monday’s case tests when some citizen lawsuits might be kept out of court under a provision aimed at opportunistic lawsuits based simply on information publicly available. It is being closely followed by the National League of Cities, a majority of the states and the Washington-based Taxpayers Against Fraud Education Fund, which encourages citizen lawsuits and strong government enforcement of the False Claims Act.

The act prohibits citizen lawsuits arising from public disclosures “in a congressional, administrative or (Government Accountability Office) report, hearing, audit or investigation.” The question Monday was whether that exemption relates only to federal reports — as the Department of Justice argues — or blocks a whistle-blower from bringing a claim based on information publicly available in a state or local report.

That question, which has divided lower court judges, arose in a North Carolina case before the high court. An employee of the Graham County Soil and Water Conservation District alleged fraud tied to the county’s participation in a federal disaster relief program after a storm in 1995.

A federal trial judge rejected the lawsuit brought by Karen Wilson, saying a Graham County audit of the controversy had documented some of the problems she cited, including the county’s failure to seek competitive bids. The U.S. Court of Appeals for the 4th Circuit reversed, saying only federal administrative reports, audits or investigations would have precluded her suit under the False Claims Act.

Douglas Hallward-Driemeier, an assistant U.S. solicitor general, told the justices that Congress wanted the disclosure exemption limited to federal reports and that reading it to encompass state and local administrative reports would undermine the anti-fraud law.

He said federal reports arising from investigations underway by the U.S. government are different from local audits not readily known to federal officials. “The government has to drill down many levels before it necessarily is going to know about that fraud,” he said.

Christopher Browning, representing Graham County officials, countered that if the court followed the federal government’s reasoning, “there will be a proliferation of opportunistic … actions brought under this statute. (That) would have a devastating effect upon states (and) local governments.”

Thirty states have joined the side of the Graham County Soil and Water Conservation District, urging the court to rule that the case initiated by Wilson and joined by the U.S. government should be thrown out. The Taxpayers Against Fraud Education Fund is on the other side, asserting that if the exemption is extended to state administrative proceedings, “the federal government stands to lose valuable information about fraud.”

Mark Hurt, representing Wilson, said Congress tied the exemption to federal investigations. Hurt said the drafting history from the House and Senate deliberations shows that lawmakers were focused in 1986 on federal reports that would be “more likely to put the government on notice” about fraud.

The justices showed by their questions that they thought the law was ambivalent and there was no easy interpretation.

“Why wouldn’t a state report be as much of a public disclosure as a federal report?” Justice Ruth Bader Ginsburg asked. Hurt said state reports are likely to be “sitting in file cabinets all around the country,” escaping federal view.

Justice Anthony Kennedy asked about the practical rationale for the federal-state distinction. Hurt said the government needed to rely more on citizens to sift through local reports.

Chief Justice John Roberts asked Browning for his best argument if the court believed the merits from each side were about equal and might have a tendency to rule for the U.S. government, which has a large stake in such cases. Browning said the counterargument would be the flood of potential lawsuits.

Hallward-Driemeier said several proposals are pending in Congress related to the anti-fraud law, but none addresses the disclosure rules.

A ruling is likely by July.

NEW CASTLE ATTORNEY JOHN M. BERRY JR. AND ACLU HAVE SUED REED N. MOORE JR IN HIS CAPACITY AS CHAIRMAN OF KBA INQUIRY COMMISSION. The Federal lawsuit alleges the KBA Inquiry Commission violated Berry’s Constitutional Rights to Criticize Actions of the Legislative Ethics Commission

Monday, November 30th, 2009

 The Law Behind the News by LawReader Senior Editor Stan Billingsley

   On Aug 14, 2007 the Legislative Ethics Commission conducted an inquiry regarding a complaint filed against Sen. David Williams by Richard Beliles Chairman of Kentucky Common Cause.  It was alleged that a letter sent out to lobbyists was in violation of Legislative Ethics Rules which prohibit a member of the Legislature from soliciting campaign donations from lobbyists.

KRS 6.767 Prohibition against acceptance of campaign contributions from legislative agents — Penalty. “A member of the General Assembly, candidate for the General Assembly, or his campaign committee shall not accept a campaign contribution from a legislative agent.
Violation of this provision is ethical misconduct.”

The Courier Journal reported at the time:

 ”the commission investigation found that Williams invited 237 people to the lunch, 66 of whom were registered lobbyists.

 Its order does not say how many people actually attended the lunch, at which Williams was the main speaker. But the order says about half were lobbyists.

The commission’s order said Williams testified that he never saw the commitment form before the lunch and that “he had never solicited a lobbyist to do anything.”

The order said Williams told the commission that the forms were given to lobbyists at the lunch so “they could inform people that we’re having this (fundraiser) and deliver information to their clients.”

 Distribution of the form, coupled with some of Williams’ remarks at the lunch, “led some lobbyists in attendance to conclude that they were being asked to raise funds.”
 But the commission order said, “There was credible testimony that Senator Williams did not specifically ask lobbyists to do so.” ”

Tom Loftus  wrote in  The Courier-Journal   Aug. 30, 2007
FRANKFORT, Ky. — Senate President David Williams was cleared yesterday of an allegation of improperly soliciting lobbyists to help raise money for Senate Republican candidates.
 In a nine-page order that was approved unanimously, the Kentucky Legislative Ethics Commission said “there is not probable cause to believe that Senator Williams intentionally violated the Code of Legislative Ethics.”

 Williams, a Burkesville Republican, said in a statement that he was pleased to be “cleared of any violation … by unanimous vote.”

The Courier-Journal reported two days after the event that lobbyists and others were given a “commitment form,” asking them to pledge to give or raise as much as $50,000 for two committees that help pay for the campaigns of Republican Senate candidates.

“Legislators are banned by the ethics code from asking lobbyists to help raise money for such committees. But the commission’s order blamed the solicitation form on Williams’staffers who helped plan the lunch.”

John Berry,  Richard Beliles Chairman of Common Cause, members of the media and other persons appeared for the Aug 14, 2007 hearing, but were excluded from the hearing  before the hearing went into session although  Sen. David Williams was allowed to remain in the inquiry proceeding of the  Legislative Ethics Commission.

KRS 6.691 calls for public hearings of the Legislative Ethics Commission.

KRS 6.691 Adjudicatory proceedings — Action by commission — Appeal. 

(3) All adjudicatory proceedings of the commission carried out pursuant to the provisions of this section shall be public, unless the members vote to go into executive session in accordance with KRS 61.810 …  (KRS 561.180 relates to – Exceptions to open meetings.)

 The foregong statute governs “adjudicatory proceedings” and is subsequent to the “PRELIMINARY” hearing also referred to as a “grand jury” like hearing.  The statute does not mention a procedure for “a closed hearing” at the preliminary phase.  A party against whom a complaint is filed made attend the preliminary hearing with his attoney.

 KRS 6.686 (2) says that: “All commission proceedings, including the complaint and answer and other records relating to a preliminary inquiry, shall be confidential until a final determination is made by the commission,…” 

 If the hearing complained of by Berry and the ACLU was a preliminary hearing, it is unexplained how the public would have known about the date, time, place and purpose of the hearing unless the confidentiality had been waived.

While the accused party is allowed to attend the “preliminary” hearing, he is clearly forbidden from attending a closed or executive session at any adjudicatory proceeding.  The definition of “adjudicatory hearing” would appear to apply to any hearing in which an adjudication is made….it is unclear if this includes a finding at the preliminary phase.

On Oct. 5, 2007 Berry wrote a letter to the LEC Chairman and criticized the decision reached and the method in which the proceeding was conducted.

Berry’s letter was placed on the LEC agenda for discussion on Oct. 5, 2007.  Berry attended this hearing where his letter was discussed.

Subsequently Berry was notified On Nov. 9, 2007 by the Inquiry Commission that he was under investigation for “professional misconduct for disseminating his Oct. 5, 2007 letter”.

The Inquiry Commission charged that Berry’s letter contained” incorrect and misleading statements in violation of SCR”.

We have not viewed the Berry letter, and unless he wins this Federal lawsuit, no one else is likely to see this letter. 

Berry was advised that the distribution of his letter was being investigated as “unprofessional conduct”.

We have been unable to find any statute or rule which specifically prevents a person who is not a party to an ethics investigation by the Legislative Ethics Commission from writing a letter.

Some l6 months later, the Inquiry Commission On March 16, 2009 notified Berry that his letter violated SCR 3.130 8.2(a) by “publically implying that the LEC did not conduct its review appropriately”.  The final action by the Inquiry Commission (a Warning Letter)  did not mention the original claim regarding dissemination of the letter, it only stateed that it concerned the allegation of Berry that the LEC had  ”publically imply(ed)…that the LEC did not conduct its review appropriately”. 

 The ethical rule Berry is alleged to have violated is:

“ SCR 3.130(8.2) Judicial and legal officials

 (a) A lawyer shall not make a statement that the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge, adjudicatory officer or public legal officer, or of a candidate for election or appointment to judicial or legal office.

(b) A lawyer who is a candidate for judicial office shall comply with the applicable provisions of the Code of Judicial Conduct.

HISTORY: Adopted by Order 89-1, eff. 1-1-90


Supreme Court 1989:

[1] Assessments by lawyers are relied on in evaluating the professional or personal fitness of persons being considered for election or appointment to judicial office and to public legal offices, such as attorney general, prosecuting attorney and public defender. Expressing honest and candid opinions on such matters contributes to improving the administration of justice. Conversely, false statements by a lawyer can unfairly undermine public confidence in the administration of justice.

[2] When a lawyer seeks judicial office, the lawyer should be bound by applicable limitations on political activity.

[3] To maintain the fair and independent administration of justice, lawyers are encouraged to continue traditional efforts to defend judges and courts unjustly criticized”

The Courier Journal article did not report any supporting information being provided by the KBA to support their claim that Berry’s statements critical of the LEC were “false or with reckless disregard as to its truth or falsity” as required by SCR 3.130 8.2(a).

News reports have attributed the complaint against Berry as having been advanced by former Court of Appeals Judge Paul Gudgel of Lexington, a member of the LEC.  Gudgel did not respond to a reporter’s questions.

After the Inquiry Commission issued the warning letter to Berry, they dismissed further action.

Berry’s complaint alleges that the Discipline letter remains in Berry’s file, and can be used to enhance any future complaints of unethical conduct that may be charged against him, and should be withdrawn.

The KBA Inquiry Commission letter warned Berry not to further distribute his letter.

The Federal complaint contends that the action of the Inquiry Commission violates his free speech rights and “furthers no compelling governmental interest nor is it tailored to serve a governmental interest”.

Berry seeks a restraining order holding SCR 3.130 8.2(a) as applied unconstitutional.

He seeks a restraining order against the Inquiry Commission from seeking further enforcement of SCR 3.130 8.2(a).   He also seeks nominal damages and attorney fees under 42 USC Sec. 1988.

Berry’s federal complaint was filed by Louisville Attorney William Sharp an attorney for the ACLU.


KRS 6.691 requires that meetings of the Legislative Ethics Committee must be open to the public unless the members vote to go into executive session in accordance with KRS 61.810.

KRS 61.180 is a statute regarding exceptions to the open meetings law that says all meetings of public agencies shall be open to the public.  

Our review of KRS 61.180 says:

(1) All meetings of a quorum of the members of any public agency at which any public business is discussed or at which any action is taken by the agency, shall be public meetings, open to the public at all times, except for the following:

(The exceptions listed in 61.180 which appear to apply to this situations are :)

(f) Discussions or hearings which might lead to the appointment, discipline, or dismissal of an individual employee, member, or student without restricting that employee’s, member’s, or student’s right to a public hearing if requested. This exception shall not be interpreted to permit discussion of general personnel matters in secret;

Comment:  Section (F) supports the right of the LEC to close their doors to the public. However, that section should be read in light of Section (j) which more accurately describes the function of the LEC and places limitations on the people who may attend the closed meeting:

(j) Deliberations of judicial or quasi-judicial bodies regarding individual adjudications or appointments, at which neither the person involved, his representatives, nor any other individual not a member of the agency’s governing body or staff is present, but not including any meetings of planning commissions, zoning commissions, or boards of adjustment;

Comment: Section (j) says that if there is a closed meeting,  only members of the LEC and their staff may attend the closed meeting, and it specifically mandates that “neither the person involved (i.e. Sen. Williams), his representative, nor any other individual not a member of the governing body or staff” shall be allowed into the closed meeting.   It is reported in the Courier Journal stories and alleged by Berry and the ACLU lawsuit that Sen. Williams was allowed to attend the closed meeting of the LEC while Berry and Richard Beliles and the media were excluded. 

If Sen. Williams was allowed to attend the closed meeting as alleged, then there is no support for the allegation of  the Inquiry Commission’s finding  that Berry’s acts were a violation of  SCR 3.130 8.2(a) and constituted  an ethics violation for “falsely” and with “reckless disregard as to the truth”  when he made the statement in his letter that the LEC “did not conduct its review appropriately.”

Let’s explain this in simple terms.  KRS 61.810 (j) says that Sen. Williams could not be allowed to attend the closed meeting.  If Berry said that the LEC acted improperly by allowing Sen. Williams to attend the closed meeting…, where is the falsity in Berry’s comment that the LEC  “did not conduct the review appropriately”?

Previous court decisions regarding statements made by attorneys focused on the failure of the attorney to offer substantial proof of his complaints, but otherwise said an attorney has the right to “criticize the courts and their decisions.”

In 1955, before the existence of SCR 3.120 8.2(a), the court allowed sanction of an attorney who had made “false and scurrilous” charges against a sitting judge which charged political corruption.

Kentucky State Bar Ass’n v. Lewis, 282 S.W.2d 321 (Ky., 1955)

 ”Freedom of speech is not a license. It is a right or a privilege constitutionally guaranteed, but he who uses it as a license to degrade another does so at his peril. He must be prepared to prove the truth of his charges. Of course any attorney, as well as any other citizen has the right to criticize the Courts and their decisions, but the publication of false and scurrilous matters subjects them to disciplinary action. Thatcher v. United States, 6 Cir., 212 F. 801; State ex rel. Dabney v. Breckenridge, supra, 126 Okl. 86, 258 P. 744, 53 A.L.R. 1239; Snyder’s Case, 301 Pa. 276, 152 A. 33, 76 A.L.R. 666

“We believe that where he makes charges of judicial corruption such as he made here, the attorney must be prepared to introduce substantial competent evidence in support of those charges.”

“In this case the defendant caused to be printed and published charges of political favoritism and corruption against honorable and distinguished judges, without any real effort to investigate the facts, and without a scintilla of evidence to support them.”

In l980 the court held:

 Kentucky Bar Ass’n v. Heleringer, 602 S.W.2d 165 (Ky., 1980)

   ”We have previously, yet infrequently, had occasion to review charges of professional misconduct by attorneys who by their conduct and comments chip away at public confidence in the integrity of the judicial system. Kentucky State Bar Association v. Lewis, Ky., 282 S.W.2d 321 (1955) the attorneys involved charged in pleadings and in the local newspaper that a change in the assignment of special judges was politically motivated. We recognized that an attorney, just as any citizen, has the right to criticize the courts and their decisions, but charges of corruption or unethical conduct must be made only in good faith supported by substantial competent evidence. The attorney “owes it to himself as an attorney, to his profession, and to the Court to help maintain the dignity and decorum of the Court, and thus maintain the respect of the people for judicial processes.” KSBA v. Lewis, supra, at 324. Recently, in KBA v. Nall, supra, we applied this rule to an attorney who described a proceeding before a hearing officer of an administrative body as a “mere farce” and a “Kangaroo court” during a radio station interview.”

Ky. Practices For Retaining Evidence Affects Old cases.

Saturday, November 28th, 2009

Ky. Practices For Retaining Evidence Affects Old cases.

Excerpted from AP report: Nov. 27, 2009

Defense attorneys say evidence has gone missing in Kentucky, resulting in problems for six capital cases and possibly hundreds of other prosecutions, including rapes and robberies.

All the cases predate DNA testing, which can now be used to determine guilt.

“It’s really becoming an issue,” said Kentucky Innocence Project chief Ted Shouse, whose office is reviewing more than 4,000 old cases. “This is going to be a huge problem.”

Kentucky enacted a 2004 law allowing some death row inmates to request DNA testing on evidence if their cases predate the science. The state also passed a law requiring preservation of evidence from the moment it is collected. Meanwhile, many Kentucky counties set about replacing old courthouses – and transferring files and evidence to the new facilities.

But the evidence rules in place before 2004 meant the evidence wasn’t always easy to find.

In one case involving Gregory Wilson, who was convicted of the 1988 kidnapping and murder of Deborah Pooley in northern Kentucky, hairs used to send him to prison were lost before they could be tested for DNA. They are still missing. Wilson is awaiting an execution date after exhausting his appeals.

Louisville public defender Dan Goyette, who represents Wilson, said the hairs could cast doubt on his client’s guilt.

“At this point, everything is crucial,” Goyette said.

Court reporters, prosecutors and local law enforcement in Kentucky’s 120 counties used to keep tabs on the evidence in their own ways. Sometimes evidence was misplaced or thrown out, said Gordon Rahn, an attorney with the Kentucky Innocence Project.

The group received a $1.1 million grant from the U.S. Department of Justice last year to review old cases. But pursuing cases under the grant has hit a roadblock, Shouse said.

Leigh Anne Hiatt, a spokeswoman for the Kentucky Administrative Office of the Courts, which oversees the building of new courthouses, said clerks’ offices are responsible for tracking the evidence.

Hiatt said there was no written policy for moving evidence from one facility to another, but the AOC’s practice is to have its employees transport the evidence to ensure it is properly handled.

U.S. 7TH. CIRCUIT CT. OF APPEALS RULES THAT DOMESTIC VIOLENCE BAN ON POSSESSION OF GUN HAS AN EXCEPTION UNDER 2ND. AMENDMENT. Deerhunter under a DVO, shot a deer. He was ordered released from Federal Prison On Possession of Firearm.

Saturday, November 28th, 2009


By Bruce Vielmetti of the Milwaukee –  Journal Sentinel

Nov. 27, 2009

A Rock County man sentenced to two years in federal prison for shooting a deer while he was on probation for domestic violence has had his case overturned by a federal appeals court.

The case could have far-ranging impact in the gun-rights debate. For Steve Skoien, it meant he’ll be home for the holidays.

The 7th Circuit Court of Appeals in Chicago ruled earlier this month that, in light of a major Supreme Court ruling about individual gun rights last year, prosecutors need to show that a lifetime ban on gun ownership for those convicted of domestic violence has a reasonable connection to reducing domestic gun violence. That 1996 law, the appeals court found, should not be grouped with other “presumptively legal” firearm restrictions mentioned in the 2008 Supreme Court case, known as District of Columbia vs. Heller.

The opinion by Judge Diane Sykes says that Heller’s “reference to exceptions cannot be read to relieve the government of its burden of justifying laws that restrict Second Amendment rights.”

And so Skoien’s conviction was reversed and his case sent back to Madison so prosecutors can try to meet that burden. On Wednesday, a judge ordered his release from federal prison in North Carolina, where he had been assigned to serve his sentence.

Skoien, 30, was convicted of misdemeanor domestic violence in 2006 and sentenced to probation. In 2007, probation agents learned Skoien had gotten a gun deer license. They went by his house and found a shotgun in his pickup. He admitted he’d used it to shoot a deer that morning. In fact, the carcass was in his garage.

A federal grand jury indicted Skoien for violation of a 1996 federal law that prohibits anyone convicted of domestic violence from ever possessing guns for any reason, often referred to as the Lautenberg Amendment. Skoien entered a conditional guilty plea, was sentenced to two years in prison and appealed.

From the beginning, Skoien argued that applying the federal law in his situation violated his 2nd Amendment right to possess a gun for hunting. U.S. District Judge Barbara Crabb denied a motion to dismiss, and a second motion made after the Heller ruling. That case found that the 2nd Amendment guarantees individual rights to have guns for self-defense, and that the total handgun ban in Washington, D.C., was therefore unconstitutional.

But the Heller court also said it wasn’t trying to undo the many “presumptively lawful” gun regulations, such as those prohibiting felons and the mentally ill from having guns, or restricting guns from certain places.

While Crabb thought the ban on guns for people convicted of misdemeanor domestic violence obviously fit the same category, Sykes found that conclusion premature.

“We take all this to mean that gun laws – other than those like the categorically invalid one in Heller itself – must be independently justified,” Sykes wrote after discussing aspects of the Heller ruling.

Sykes explains that an intermediate level of review should apply. In other words, the government would need to show more than just a rational basis for the law, but not have to meet the very high standard known as strict scrutiny.

Preventing domestic gun violence certainly qualified as an important government interest. But the government must still show a law that perpetually bans someone convicted of domestic violence from ever having a gun is a reasonable means to that end. Sykes said the government didn’t make enough of a record on that question, and sent the case back.

“If the government successfully discharges its burden, the district court shall reinstate Skoien’s conviction,” Sykes wrote


Friday, November 27th, 2009


On Wed. Nov. 25th. Nicole Howell filed a Federal 1983 Civil Rights complaint against Kenton Commonwealth Attorney Rob Sanders.  The suit claims Sanders ordered the arrest of Howell without the required “probable cause”.   Kentucky law since 1993 has held that Prosecutors have a qualified immunity for acts committed during the “Investigatory Phase” of their work, but have Absolute Immunity for the “Prosecutorial Phase” of their work.

To overcome qualified immunity a litigant suing a prosecutor must prove malice and lack of probable cause.  The Doctrine of Absolute Immunity is currently under attack in the U.S. Supreme Court in the Pottawatamee case. A decision by the U.S. Supreme Court is expected to be handed down by June of 2010.

 Absolute Immunity was first created in Federal law in the 1990′s, and was adopted in Kentucky only in 1993.  At the time of the adoption of that doctrine in Ky. Justices Leibson, Combs and Wintersheimer all dissented.

After the l993 Kentucky case, which failed to extend Absolute Immunity to the Investigatory Phase of a criminal prosecution, the General Assembly quickly adopted legislation which provides compensation for any jury verdicts against a prosecutor. This law also covers a Prosecutors legal expenses in defending such a claim.

The Federal Absolute Immunity Rule adopted in the Imbler case, in a concurring opinion made exception for “Constitutional Violations” such as withholding exculpatory evidence.  So even the leading federal ruling on absolute immunity made exceptions.

In the 16 page complaint, Howell’s attorney, Eric Deters of Independence, alleges that Sanders supervised the investigation and personally ordered the arrest of Howell even though the credibility of the complaining witness was questioned by police.

Several Federal Court rulings since Imbler, have authorized malacious prosecution claims against public officials who violate constitutional rights of a defendant.

The lawsuit against Sanders is not the first civil lawsuit against a Kentucky Prosecutor. There are two other Kentucky cases which limit the protection of prosecutors.

In Dugger v. Off 2nd, Inc., Ky.App., 612 S.W.2d 756 (1981), “the Court of Appeals rejected a prosecutor’s absolute immunity claim. Dugger was wrongfully arrested pursuant to a warrant charging him with disorderly conduct. He alleged that the prosecutor signed the judge’s name to the warrant and that the prosecutor’s actions constituted gross negligence, wantonness, abuse of process and collusion since Dugger’s wife was then being represented in divorce litigation by the prosecutor’s law partner. The court correctly recognized that a public prosecutor must have immunity when he is acting within the scope of his authority for without it, the prosecutorial function would suffer. Nevertheless, the court examined the applicable constitutional and statutory provisions and concluded that as the prosecutor had no lawful authority to sign the name of a judge to an arrest warrant, he was outside the scope of his authority and without immunity.”

 In   McCollum v. Garrett, 880 S.W.2d 530 (Ky., 1994)  Charles R. McCOLLUM, III, Henderson County Attorney, was sued by Georgia Fay GARRETT. ” A prosecutor neither is, nor should consider himself to be, an advocate before he has probable cause to have anyone arrested.”  The Ky. Supreme Court allowed the civil claim to continue and reasoned that the alleged act was outside the County Attorneys official duties and was only protected by Qualified Immunity.

 In addition, McCollum claims absolute immunity by virtue of his status as a public prosecutor. The Court of Appeals rejected this claim holding

“… in order for a prosecutor to be immune from civil liability for malicious prosecution, he must act within the scope of his duty, which includes performing his duties in good faith. Stated differently, a prosecutor is not immune from liability if a jury finds he initiated or continued criminal proceedings with an improper motive. If, however, the prosecutor has simply made a mistake in judgment by initiating or continuing the action, he will be immune.”

        By this holding, the Court of Appeals reversed the trial court’s finding that McCollum was at all times acting within the scope of his official duties and was thereby entitled to immunity. The Court of Appeals regarded immunity as available only if McCollum performed his duties in good faith and without an improper motive.

These issues relating to prosecutorial immunity are discussed in detail in Judge Stan Billingsley’s new book, Prosecutorial Accountability which is available from LawReader Press. (

Limits on Types of Cases That can be Handled by Legal Aid lawyers under attack

Tuesday, November 24th, 2009


Bob Egelko,  San Francisco Chronicle                    Nov. 24, 2009

Conservative-backed restrictions on Legal Aid lawyers’ representation of their low-income clients survived a federal appeals court test Monday in San Francisco, but face further challenges in the Democratic Congress and the Obama administration.

Congress attached the rules in 1996 to the budget of the Legal Services Corp., which funds lawyers for the poor in civil cases.

The restrictions, contained in each succeeding budget, prohibit the lawyers from filing class-action suits on behalf of numerous clients. They also bar attorneys from seeking fees that are usually awarded to the winning side in cases involving individual rights, and from lobbying for changes in the law.

The restrictions apply to the $390 million that the federal government provides to legal service programs.

Backers of the budget rules say they were needed to focus legal services on individual clients rather than political causes, but advocates of the programs say the restrictions have hurt their representation of the needy.

This year, both the House and the Senate have passed budget measures that would lift the ban on attorneys’ fees for at least the next year. The Senate bill would also allow Legal Aid programs to use non-federal funds for class actions. President Obama’s proposed budget would allow federal funds for attorneys’ fees and class actions.

In Monday’s case, Legal Aid agencies and lawyers in Oregon argued that the bans on class actions, attorneys’ fees and lobbying were unconstitutional based on a 2001 U.S. Supreme Court ruling. The high court said one of the 1996 budget restrictions, which prohibited lawyers who represented welfare recipients from challenging welfare laws, violated the attorneys’ freedom of speech.

But the Ninth U.S. Circuit Court of Appeals in San Francisco said the remaining prohibitions do not limit lawyers’ ability to speak on behalf of their clients.

In measures such as the bans on attorneys’ fees and class actions, “Congress did not discriminate against any particular viewpoint or motivating ideology,” Judge A. Wallace Tashima said in the 2-1 ruling.

Dissenting Judge Harry Pregerson contended the majority had ignored the Supreme Court’s condemnation of any budget limit that “distorts the legal system” by altering lawyers’ traditional roles.

The current bans have that effect, he said, by preventing lawyers from effectively representing their client – for example, individual tenants who can pressure their landlords to remove hazards only by joining in a class action.

Read more:

The No. Ky. Bar Association Announces New Officers and Directors.

Saturday, November 21st, 2009

The No. Ky. Bar Association Announces New Officers and Directors.


President                Jeffrey R. Aylor             Lape & Aylor, P.S.C.

President-Elect      Sarah Tankersley          Santen & Hughes

Secretary                Donna Bloemer             Donna M. Bloemer, Attorney at Law

Treasurer               Gary Jennings                Mountjoy & Bressler, LLP

Treasurer-Elect     Chad Levin                    Robbins, Kelly, Patterson & Tucker



John J. Garvey, III           Freund, Freeze & Arnold


William Adkins               William R. Adkins, Attorney at Law, P.S.C.

Ryan Beck                     Busald Funk Zevely, PSC

David Fessler                 Fessler, Schneider & Grimme

Lori Fields-Lee              Ziegler & Schneider, P.S.C.

Colleen Hegge                Noyes, McMain & Hegge, PLLC

Robert Hoffer                 Dressman Benzinger LaVelle PSC

Richard Nielson             Nielson & Sherry, PSC

Jeffrey Rosenstiel            Frost Brown Todd LLC

Linda Schaffer                Keating, Muething & Klekamp, PLL

Michael Sutton               Sutton Rankin Law, PLC


Young Lawyers CHAIR  

Farrah Vaughn               The Law Office of Farrah Isaacs Vaughn, PLLC

Judicial Immunity Defense Not Absolute in Pennsylvania Case re: Imprisonment of Juveniles by Bribed Judges

Saturday, November 21st, 2009

The Development of the Doctrine of Judicial Immunity

Caputo: 1607 “seminal case” of judge determined “modern policies” of immunity.

By Mark Guydish Education Reporter

How could two judges accused of accepting millions for actions that led to increased incarceration of juveniles be immune from a lawsuit?

U.S. District Judge Richard Caputo seems to have anticipated the question – and anger – when he penned his opinion explaining the ruling, going into considerable detail on the case law that supports his decision.

He cites a 1990 ruling in San Diego that noted “as a historical matter, the doctrine of judicial immunity arose in response to the creation of the right of appeal. In the 10th and 11th centuries in England, when no right of appeal existed, losing litigants could challenge unfavorable judgments on the ground that they were false …. [O]nce appeal became available, judicial immunity was gradually accepted under the common law.”

The “seminal case” occurred in 1607 when an English judge determined “what are now considered some of the modern policies that underlie the doctrine of judicial immunity.” It ensures finality of judgments, protects judicial independence, avoids continual attacks upon judges who may be sincere in their conduct, and “protects the system of justice from falling into disrepute.”

As the doctrine evolved, courts determined it applies as long as the judge in question had jurisdiction. The first big case involving judicial immunity in the United States was Bradley vs. Fisher in 1871, when an attorney sued a judge who had “effectively disbarred him for rude and contemptuous behavior” in court. The U.S. Supreme court agreed that the judge had been too harsh, but that motives of a judge cannot “be the subject of judicial inquiry.”

Caputo then cites a 1967 case, Pierson vs. Ray, in which a judge was accused of making decisions based on racial discrimination. The U.S. Supreme Court made the landmark ruling that “immunity applies even when the judge is accused of acting maliciously and corruptly, and it is not for the protection or benefit of a malicious or corrupt judge, but for the benefit of the public, whose interest it is that the judges should be at liberty to exercise their functions with independence and without fear of consequences.”

A 1978 Supreme Court ruling in Stump vs. Sparkman “expanded upon the requirement of a judicial act” stating that it is “the nature of the function performed, not the identity of the actor who performed it” that informs the immunity analysis.” A circuit court had granted a mother’s petition to have her 15-year-old daughter sterilized, and the daughter had argued the ruling was “so totally devoid of judicial concern” for her well-being “as to disqualify it as a judicial act.” The Supreme Court disagreed.

In a 1980 case (Dennis vs. Sparks) with direct impact on Caputo’s decision, the Supreme Court ruled that a judge accused of corruptly granting an injunction regarding oil leases was immune, but conspiring parties could still be liable. Caputo has similarly ruled conspiring parties in the current corruption probe are not fully immune.

The most recent Supreme Court ruling on judicial immunity was Mireles vs. Waco, in which the plaintiff alleged a judge had ordered police to forcibly bring him from another courtroom, authorized the use of unreasonable force, and called the plaintiff vulgar names. An appeals court had found the alleged conduct “not a judicial act,” but the Supreme Court reversed that ruling, further expanding the definition of a judicial act, which is protected by immunity. Caputo has ruled that some alleged actions in the lawsuit do not qualify as judicial acts and are not protected by immunity, a fact the plaintiffs’ attorneys embraced as a victory.

Caputo cites two cases in which the Supreme Court ruled immunity did not apply. In a 1988 case (Forrester vs. White), a judge was not immune from charges stemming from firing a probation officer. The Court ruled this was an administrative act, not a judicial one. The other involved a “judicial-like” committee, not a judge.

Caputo determined that arguments put forth by the plaintiffs in an effort to deny immunity to ex-county judges Mark Ciavarella and Michael Conahan failed to meet any of the narrow situations in which the Supreme Court has determined judicial immunity did not apply. In fact, he noted the actions of the two judges were similar to those of judges granted immunity in the prior cases.

Conahan’s granting of an injunction to block release of a state report that criticized the county’s dealings with a private detention center was similar to the situation in Dennis vs. Sparks, Caputo noted.

“As to Ciavarella, focusing only on the nature of the act performed, as I am required to do by law, I also find that the determinations of delinquency and the sentences imposed were judicial acts,” Caputo wrote.

However, Conahan’s alleged signing of a “placement agreement” guaranteeing more than a million dollars would flow to the detention center by sending children there was an administrative act, as was his successful effort to cut funding for the county-owned detention center, essentially forcing its closure, which increased demand for placement in the private facility.

“Plaintiffs have argued that such egregious actions demand a contrary result. They argue that the conduct is so contemptible that immunity should not be available. They also note Ciavarella’s admission that he did some, if not all, of the acts for which he was indicted and suggest that this fact renders judicial immunity unavailable. They argue further that immunity should be available only for honest mistakes. And that failing such, the doctrine of immunity should not apply.

“Case law establishes that the availability of immunity is not determined by a sliding scale. The degree of corrupt behavior is not the touchstone of the immunity doctrine’s application. The doctrine holds that judges with bad intentions, as well as those with good intentions, are immune from suit.”


Addendum by Editor:  

Caputo also wrote in his opinion that both Conahan and Ciavarella still face liability — just not as much as before.

“For example, Conahan’s signing of a ‘Placement Agreement’ would be an administrative, not judicial act,” Caputo wrote. “Similarly, any acts in making budget requests to the Luzerne County commissioners would also be administrative or executive in nature. And the actions of Conahan and Ciavarella in coercing probation officers to change their recommendations is outside the role of a judicial officer.” Caputo wrote that he recognized the “egregious nature” of the allegations, but continuously stressed that was not the true issue.

“This is, however, about the rule of law,” Caputo wrote. “It is about the rule of law in the face of popular opinion which would seek a finding directly contrary to the result the rule of law dictates.” Marsha Levick, chief counsel for the JLC, called Caputo’s decision that the judges remain exposed to civil liability for their out-of-court conduct an important victory for the plaintiffs and the community.

“What is important to everybody is that the judges have not been dismissed from the lawsuit and we will have an opportunity to pursue our allegations against them and pursue our claims for damages,” Levick said.

Levick said the JLC recognized a risk that the court would grant immunity for the judges’ courtroom conduct. It argued that the constitutional violations that occurred in Ciavarella’s courtroom pushed the case outside the arena for judicial immunity in the United States. “We’re talking about 6,000 violations over the course of five years,” Levick said.

Mediation’s Are Now Being used Post-Trial to Limit Time and Expense of Appeals

Thursday, November 19th, 2009


The Arkansas Court of Appeals has made mediation available since last September.

Article by Doug Smith


Most laymen think of mediation as a process that’s done before trial, with the hope of avoiding trial. And so it is, but there’s also a lesser-known mediation after trial, with the idea of avoiding a costly appeal. The Arkansas Court of Appeals has made mediation available since last September. Only a couple of cases have gone through it, however, the great bulk of lawyers and clients choosing to follow the normal appeals process.

The concept of resolving differences by means other than trial has gained popularity nationwide in recent years. In Act 1179 of 2003, the Arkansas legislature declared that, “It is the duty of all trial and appellate courts of this state, and they are hereby vested with the authority, to encourage the settlement of cases and controversies pending before them by suggesting the referral of the case or controversy to an appropriate dispute resolution process … ”

The Arkansas Supreme Court regulates the legal system in Arkansas, and a Supreme Court committee recommended a pilot program in mediation for the Arkansas Court of Appeals, the state’s second-highest court. When a party files an appeal from a trial court decision, the circuit clerk provides a form asking both sides if they’d like to mediate. If both do, the appeal is stayed, and a mediator is assigned from a list of mediators certified by the state Administrative Office of the Courts.

“Preparing a record of the trial is the greatest expense of appeal,” Chief Judge Larry Vaught of the Court of Appeals said. If both sides agree to mediation, they don’t have to purchase a record. If the parties settle their differences through mediation, the case ends there. If they can’t resolve their differences in 60 days, the case reverts to the normal appeals process.

Supreme Court Justice Paul Danielson is an advocate of mediation, and chairman of the Court committee that oversees the Court of Appeals pilot program. It was Danielson who  suggested the program be established. The federal courts and some state courts employ mediation at the appellate level, he said, and, “There are things you can do in mediation that you can’t do in court.” Matters that would be public record in court can remain private in mediation. The opposing parties get personally involved in the negotiations, and that sometimes aids in reaching agreement.

The Court of Appeals pilot program will eventually be evaluated, and decisions made on whether to continue the program and possibly even expand it to the Supreme Court. No date for that evaluation has been set, but the prospects for appellate mediation aren’t bright.

“So far, there’s not been a lot of interest,” Danielson said. “I suspect if that continues, the program will be dropped.”

Why are appellate mediation programs popular elsewhere and not in Arkansas? “Arkansas doesn’t have the congested dockets that many states have,” Danielson said. “When I was a circuit judge, if someone really wanted a jury trial, we could get one in 4 to 8 months. In other states, you may wait a couple of years for a trial.” People who’ve waited years for a verdict are ready to get an appeal decided as quickly as possible. Arkansas’s small population is largely why court dockets aren’t as crowded as elsewhere, Danielson said — “Rural areas have few cases.” And, he added, “I think we have a pretty good court system. People are taking care of business.”

West Virgina Judicial Reform Panel submits report Calling for Mid Level Court of Appeals Like Kentucky

Monday, November 16th, 2009


CHARLESTON – West Virginia needs a mid-level appeals court to lighten the caseload of the state Supreme Court, according to a judicial reform panel report.

Also in the Independent Commission on Judicial Reform report for Gov. Joe Manchin released Sunday night, the group did not recommend an end to the partisan election of judges. It did, however, suggest the state study the feasibility of a creating a business court.

The 151-page report also suggested finding more uniformity and openness in how governors fill judicial vacancies.

To read the full report, click here.

The 10-member panel’s suggestion of a new level of court would be a statewide panel of six to nine judges that would hear cases sent to it from the state Supreme Court. It’s often called a deflective court.

As for the process of picking judges, the commission didn’t suggest major changes despite having former U.S. Supreme Court Justice Sandra Day O’Connor on the panel. She has long been a proponent of merit-based appointment of judges, which is how federal judges are selected.

While suggesting that the state continue with the partisan election of judges, the commission did suggest some minor changes. One example is that the panel suggests filling the proposed “deflective” court with appointed judges.

Also, the panel says the Legislature should define the makeup of advisory panels used by the governor when filling a judicial vacancy. It also suggests a defined evaluation process and making the entire process more open to the public.

The report also recommends a public financing pilot program to curb campaign spending in judicial races. It suggests such a pilot program for one of the two Supreme Court seats up for election in 2012.

The commission also recommended the state study the feasibility of creating a business court. This court would handle corporate and contract disputes.

In a statement Monday, Manchin said he would review the report to determine what issues may need to be brought before the Legislature.

“The last major reforms of our judicial system were more than three decades ago and it was time for a comprehensive look at our state’s judicial needs and any changes to be considered for the 21st century,” Manchin said. “I am very grateful to Justice O’Connor, Carte Goodwin and the entire commission for taking the time to gather this information and prepare this report. The input they received from citizens and the legal community at the public meetings will be invaluable to us. I look forward to working with the judicial and legislative branches as we move forward with any recommendations.”

The governor established the commission by his executive order on April 3, 2009 to “study the need for broad systemic judicial reforms including, but not limited to, adopting a merit-based system of judicial selection, enacting judicial campaign finance reforms or reporting requirements, creating an intermediate court of appeals, proposing constitutional amendments or establishing a court of chancery.”

Manchin said he appreciated the hard work of the panel’s nine members, which included retired U.S. Supreme Court Justice Sandra Day O’Connor, who served as honorary chair. Commission members are:

Sandra Day O’Connor, Honorary Chair; Carte Goodwin, Chair, Former General Counsel for Gov. Joe Manchin and currently an attorney at Goodwin & Goodwin; Joyce McConnell, Dean of West Virginia College of Law; Sandra Chapman, President of the West Virginia State Bar; Thomas Heywood, Esq.; Marvin Masters, Esq.; Mary McQueen, President National Center for State Courts; Andy MacQueen, Esq.; John McCuskey, Esq.; Caprice Roberts, Associate Dean West Virginia University College of Law.

The president of the West Virginia Association for Justice President also issued a statement Monday about the report.

“The West Virginia Association for Justice thanks Carte Goodwin and the other members of the commission for their months of hard work in reviewing our state’s judicial system, evaluating the concerns of various groups and West Virginia residents and then issuing this report and its recommendations,” Tim Bailey said. “WVAJ and its members will take the next few weeks to review these proposals and determine whether the recommendations address what we believe are the important issues facing the judicial system.”


Court of Appeals Upholds Open Meeting Ruling of Fayette Circuit Judge Isaacs

Saturday, November 14th, 2009


The Kentucky Court of Appeals ruled against Lexington Nov. 13th. in a case that involved a January 2008 attempt to close an Urban County Council meeting.

That meeting was scheduled to discuss the city’s response to a request before the state Public Service Commission by Kentucky American Water to build a $162 million treatment plant and pipeline. That request was ultimately approved.

City officials had planned to meet behind closed doors. But the Herald-Leader objected, citing the state’s Open Meetings Law.

Fayette Circuit Judge Sheila Isaac agreed with the newspaper, and the 21/2 hour meeting was opened.

The appeals court stood behind the lower court and said exemptions “must be strictly construed.”


Thursday, November 12th, 2009

The Ky. Assoc. of Criminal Defense Lawyers web site reports who false evidence can be created to frame innocent person.


Website Used to Create False Evidence

From Cathleen Bennett, Committee for Public Counsel Services, Boston, MA

I am sure that some of you are already aware of a website called “”
What a nightmare in a criminal context. We just had another case where the
spoofcard site was used in an attempt to frame another client.

Cathleen related the details of a rape case in which the complainant used spoofcard to send herself text messages allegedly from the defendant threatening her “not to tell anyone” or he’d “kill her” and he didn’t want to go to jail.

Caller ID Spoofing: SpoofCard’s caller ID spoofing technology allows you to set any number to display on the caller ID of the person you’re calling. SpoofCard’s caller ID spoofing service works from any phone, anytime, anywhere via SpoofCard’s toll free number. SpoofCard is the best way to make truly secure and anonymous calls.

KACDL provides full text of The Proposed Criminal Justice Council Penal Code Draft

Thursday, November 12th, 2009

The Ky. Assoc. of Criminal Defense Lawyers ( ) provides access to a full draft of the Criminal Justice Council’s Proposed Penal Code Reform Draft. The Penal Code Committee’s draft is presented here for download in two volumes:  Volume One                    Volume Two

Diversity Rule for Businesses Allowing Removal of State Cases to Federal Court Challenged in U.S. Supreme Court

Wednesday, November 11th, 2009


In a case that could substantially reduce the number of cases heard in federal courts, the Supreme Court tackled for the first time a centuries-old rule that allows businesses to remove cases out of state court. Doctrine calls for Federal Courts to hear cases pitting opponents from different states. That has been interpreted to mean businesses can declare themselves citizens of the state where they are incorporated, versus where they do business, which allows them to move a case into federal court. The issue arose when Melinda Friend filed a class action against Hertz for violating California’s wage and hour laws. The car-rental company requested that the case be tried in federal court under the diversity requirement because its headquarters are in New Jersey. Friend contends that the company is based in California. Sri Srinivasan, with O’Melveny & Myers, argued on behalf of Hertz. He said that a company’s “principal place of business,” as written in the law, should be read to mean headquarters, and called the definition a simple solution. Todd Schneider, with Schneider Wallace Cottrell Brayton Konecky, represented Melinda Friend. He said that in determining the company’s base, the location of the company’s outlets and employees should be taken into strong consideration because corporations are seen as the least foreign where they have the biggest presence. “Why didn’t they say place of doing business? That’s not the terminology that they used,” Justice Sonia Sotomayor said. When considering the case, the 9th Circuit, which affirmed a district court’s determination that California was Hertz’s principal place of business, noted that Hertz had 43 percent more employees, 75 percent more property, and 60 percent more revenue in California than in any other state. Twenty percent of the company’s business was conducted in California. “California is going to be the big winner in this,” Justice Ruth Bader Ginsburg said. “It’s going to be able to keep all those cases in its state court because so many multi-state corporations, I imagine, would come out just the way Hertz does.” Sotomayor challenged the notion that business be measured by comparing one state to another. “I’m having a hard time understanding what the appreciable difference is between 20 percent and 14 and the balance being spread over so many other places,” she said, referring to Florida as the place of 14 percent of Hertz’s business. Justice Antonin Scalia also appeared critical. “I don’t understand why, somehow, a Californian is more likely to identify with Hertz simply because there are more Californians and, hence, more Hertz outlets, than a New Jerseyite is likely to identify with Hertz,” he said. “Per capita, there are probably as many Hertz outlets in New Jersey as there are in California.” The justices appeared less critical of Srinivasan’s argument that a company’s headquarters determines the principal place of business. “So what constitutes headquarters?” Sotomayor asked. “How many executives have to live there? What else has to exist there? And then what is the default rule if those things don’t exist?” Scalia appeared to give a helping hand to Hertz after Srinivasan agreed with Ginsburg’s suggestion that the headquarters be used to determine the site of business if a corporation does not have a dominant state. Scalia chimed in. “It seems to me, to do that, you abandon your principal argument, which is that ‘place’ doesn’t mean ‘state,’” he said. “You don’t want to throw away that good argument.”


Wednesday, November 11th, 2009

Vance Walberg taught Calipari the Dribble Drive Offense in 2003.  This offense avoids a lot of passing around the court and setting up plays called by the coach.  The heart of this offense is for each player to go to the basket whenever possible.  This requires a lot of talent on the offensive player to be able to defeat his guarding opponent one-on-one.

 Three basic premises on which the dribble-drive offense functions.

â–  “Attack the rack.”

â–  “Open gaps” for drives.

â–  “Great spacing.”

The dribble-drive isn’t a patterned offense controlled by a coach calling plays from the bench. “In this offense, with my guards, if they look to me, I take their butts out,” Walberg said. “What you’re teaching them is how to play the game and not teaching them to run plays. It’s ‘I’m coming down your throat.’ ”

The players are supposed to attack the basket with purposeful drives. If your perimeter player cannot beat his man one-on-one, he’s not suited for the dribble-drive.

If the defense rotates to blunt the driver, he passes to an open man, often the offensive teammate left free by the second defender. Practice brings familiarity, which means reading options on the fly. Coaches yield control and trust the players to make the right reads.

Calipari comments:

During a talk to the Kentucky Association of Basketball Coaches, Calipari talked about what the dribble-drive is and isn’t.

â–  No more multiple passes and multiple screens to set up a shot. “You have to put that aside,” Calipari said.

â–  When you catch the ball, look to drive.

â–  If the defense sags into the lane, shoot the three-pointer.

â–  Don’t fall in love with the trey. “Anytime we shoot 30 threes, we lose,” Calipari said. “Seventeen, I’m happy. What we want is layups and dunks.”

The players must read not only the defenders, but their teammates, especially the ballhandler.

“If I stop on a certain place on the floor, my teammates know what I’m going to do,” Calipari said. “If I spin on a certain place on the court, they know what that means.”

Five players thinking as one, plus moving and adjusting as one.

Kentucky Senate Race Tightens – Poll says Ron Paul leads Greyson – Mongiardo leads Conway

Thursday, November 5th, 2009


The Kentucky Enquirer reported Wednesday Nov. 4, 2009 that a new poll shows that Ron Paul leads Trey Grayson by 3 points (a statistical tie) and the Dan Mongiardo leads Jack Conway by 11 points.

The margin of error cited for the poll is 4.1%.

In a hypothetical matchup the poll shows Grayson would beat Conway by 4 points, and Grayson would beat Mongiardo by 10 points.  

The matchup indicated that Conway would beat Paul by 4 points, and Mongiardo and Paul are tied at 43 per cent for each of them with 14% undecided.

Analysis of Wednesday’s Oral Argument before U.S. Supreme Court in Pottawattamie County v. McGhee. This case presents a claim for Absolute Immunity for Prosecutors who falsified evidence and withheld exculpatory evidence which resulted in conviction and 25 years of imprisonment of innocent man

Thursday, November 5th, 2009




Supreme Court appears split on tackling rogue prosecutors

The Supreme Court Wednesday heard arguments in a lawsuit brought by two Iowa men who spent 25 yrs in prison after prosecutors allegedly fabricated evidence against them. Justices seemed divided on the issue of how much immunity prosecutors should enjoy.

By Warren Richey The Christian Science Monitor

Washington – The US Supreme Court on Wednesday took up the difficult issue of what to do about unscrupulous prosecutors willing to induce false testimony and hide exculpatory evidence to convict innocent defendants.

At issue in Pottawattamie County v. McGhee is whether two men sent to prison for life are entitled to sue the local prosecutors in Iowa who helped arrange false testimony that led to their wrongful convictions.

Both men served 25 years in prison before being released after investigators discovered the false testimony and uncovered exculpatory evidence never disclosed to defense lawyers.

The high court has long recognized that prosecutors presenting a case at trial enjoy absolute immunity from citizen lawsuits seeking compensation for alleged violations of their constitutional rights.

But the court has also recognized that a prosecutor may not enjoy the protections of absolute immunity when serving not as a trial advocate but as an investigator searching for clues and corroboration that a crime has been committed.

During oral argument on Wednesday, the justices split into three camps. In one camp were Justices Ruth Bader Ginsburg, John Paul Stevens, and Sonia Sotomayor, who appeared primarily concerned with ensuring that victims of such prosecutorial misconduct have a potential remedy through a civil lawsuit.

In another camp were Chief Justice John Roberts and Justice Samuel Alito who appeared primarily concerned with the potentially “chilling impact” on all prosecutors if the court allowed some defendants to file such citizen lawsuits.

In the center were Justices Anthony Kennedy, Stephen Breyer, and Antonin Scalia who appeared to share the concerns of both other camps.

Deputy Solicitor General Neal Katyal, arguing in support of absolute immunity for the two prosecutors, said the government’s position was based on important societal concerns that prosecutors feel free to act as vigorous advocates.

“Absolute immunity doesn’t exist to protect a few bad apples,” Mr. Katyal said. If prosecutors know they may be sued by disgruntled defendants “they will flinch in the performance of their duties.”

Paul Clement, a former solicitor general arguing on behalf of the two wrongly-convicted defendants, said the federal appeals court in New York has allowed such citizen lawsuits against prosecutors since 2000. “There has not been a flood of these cases,” he said. “There has been a trickle.”

Mr. Clement said he had identified 17 cases brought since the 2000 appeals court action.

Chief Justice Roberts said his concerns went beyond just potential litigation. “We are concerned about the chilling effect on the prosecutors,” he said.

Stephen Sanders, a Chicago lawyer representing the two former prosecutors, urged the court to maintain an expansive application of absolute immunity for all prosecutors.

He warned that if the high court ruled for the two wrongly-convicted defendants, “it would work a radical change in the law of immunity.”

A decision in the case is expected by June 2010




To read the briefs in this case go to: On-Line MERITS BRIEFS

To read complete transcript of Oral Arguments in this case go to:  08-1065. Pottawattamie County v. McGhee

The following questions and selected answers is excerpted from the oral arguments:


JUSTICE KENNEDY: So the — so the law is the more deeply you’re involved in the wrong, the more likely you are to be immune? That’s a strange proposition.


JUSTICE GINSBURG: But it’s strange to say you can have a prosecutor, who wasn’t involved in the trial, would have liability, but as long as the prosecutor, in effect, turns the investigatory stage material over to himself, rather than to another prosecutor, then there’s absolute immunity.


JUSTICE SOTOMAYOR: But that makes no sense because, if you go down that road, then what you’re saying is that neither the — neither a police officer or a different prosecutor who fabricated evidence could be liable, either, because the only person who causes the deprivation is the prosecutor who uses the false evidence at trial.


JUSTICE BREYER: Why do we need that theory? I mean, why not just say what Newman said and the others said? There is no free-standing right. There is just a right not to convict a person with made-up evidence, and of course a prosecutor insofar as he’s involved in the prosecutorial stage is absolutely immune. But if he’s involved in the investigatorial stage of that event, well, then he’s not immune absolutely. That’s a policy decision. That has nothing to do with free-standing rights.


JUSTICE SOTOMAYOR: Am I right that none of the — neither of the two prosecutors in this case were sanctioned in any way for their conduct?


MR. KATYAL: I believe that is correct, and I also believe that no ethics complaints were ever brought. That is, rather the Respondents went into Federal court seeking money damages instead of ethics violations and the like.


JUSTICE SOTOMAYOR: But you have no reason to dispute the numerous studies we were provided that show that as a matter of routine prosecutors are not sanctioned for improper prosecutorial conduct in the investigatory stage, are you?


JUSTICE STEVENS: I just don’t see the — I don’t to see if I can understand the reason why the time in which the violation is completed, namely after the trial, goes to the question of whether there is liability for pretrial conduct.


JUSTICE ALITO: When the issue, when the -the claim is based on the evaluation of the truthfulness of a witness who eventually testifies at trial, where’s the line to be drawn between the investigative stage and the prosecutorial stage?


JUSTICE ALITO: What concerns me about your argument is the — is a real fear that it will eviscerate Imbler. Now, maybe you can convince me that it will not have that effect, but as the Solicitor General argued at the end of his argument, a very — in the typical criminal case, the witnesses are not John Q. Public with — who have never engaged in any wrongful activity.

A typical witness is — well, let’s take the case of the prosecution of a — a white — of the CEO of a huge corporation for insider trading or some other white-collar violation. And the chief witness against this person is, let’s say, the CFO of this company, who when initially questioned by law enforcement officials and investigatory officials, made — made statements denying any participation in any wrongdoing, but eventually changed his story and testifies against the CEO at trial in exchange for consideration in a plea deal.


Now, your argument, in a case like that -or you could change the facts, make it an organized crime case, make it a prosecution of a drug kingpin who’s testifying — the witness against him is a lower-ranking person in the organization who has a criminal record, maybe has previously committed perjury, has made numerous false statements, is subject to impeachment. In all of those cases a claim could be brought against the prosecutor.


CHIEF JUSTICE ROBERTS: Well, but it’s also you don’t really know, right? In other words, we’re concerned about the chilling effect on the prosecutors. We don’t know what the impact of the Second Circuit’s decision has been on the prosecutors.


JUSTICE SCALIA: The difference here is that the — the absolutely immune act which follows the -the unlawful act is — is an absolutely immune act by the very actor who performed the earlier act that -that you say induces liability. And so the argument is, what’s the use of giving him liability later on if — if you can simply drag him into litigation by — by alleging that he at an earlier stage committed a violation?


JUSTICE SCALIA: That’s the difference. I mean, to me that’s the — the crux of this, that it is the same actor who has absolute liability whom you’re trying to get on the basis of — of earlier action.


CHIEF JUSTICE ROBERTS: If you cannot rely on anything that goes on at the trial to establish the due process violation, what do you rely on to establish the violation?

CHIEF JUSTICE ROBERTS: Well, let’s say that you — let’s say that you can’t because we read Imbler as conferring absolute immunity on what goes on at the trial. And if you can’t advert to that, you don’t have a constitutional violation, right?



MR. CLEMENT: Well, I think it makes all the difference in the world in the sense that if — if they know that everything they do at trial is going to be protected, those functions, which is the basis of this Court’s functional approach to absolute immunity, are going to be protected. Now, if they’re going to be -


JUSTICE SCALIA: But it won’t be protected. They won’t have that assurance, because when they -when they produce evidence at trial, oh, yeah, I guess the production at trial will be protected, but you’re -you’re telling us that they can go back and say, ah, but you got that evidence in a bad manner, and therefore we can sue you, not for introducing it at trial, but for fabricating it before trial.

I — I don’t see that there is much of a difference as far as the deterrent effect upon the prosecutor is concerned.



JUSTICE BREYER: There’s a different tendency, which I would say this is a slight fluke, what you’re describing. I’m more worried about what Justice Alito brought up, that, other things being equal, I think it’s probably a good thing to get prosecutors involved in the questioning process. That — that has a kind of check on the police.

And the concern I’d have is that the –this will discourage the prosecutors from becoming involved in the witness — witness questioning process, at least not before the police are well on the way. And that is a very negative incentive, I would think.

So what is your most pro-prosecutorial rule that you could live with that will in fact minimize the risk of that kind of disincentive? Now, are you just going to say, well, Buckley?



JUSTICE BREYER: Or is there something — I mean, I can see Buckley with the, you know, probable cause. It turns on and off as you’re talking to the witness. First what he says, you have the probable cause; then you don’t; then you do; then you don’t. I mean, I — I’m not — I just want you to give your best thought to this problem and tell me what is the most safe rule that will allow you to win your case?



JUSTICE KENNEDY: Well, could you answer Justice Breyer’s question, which I — I think raises a — a critical point in terms of Justice Alito’s examples of talking to the witness. Why isn’t that at some point — I think in Buckley, the “judicial phase.” Why is this the judicial phase?



JUSTICE KENNEDY: No, but probable cause doesn’t work because you have — you have probable cause once you fabricate the evidence.


JUSTICE KENNEDY: Suppose the prosecutor isn’t sure there’s probable cause and he calls — calls in the accountant, the CFO, and really doesn’t begin to believe his story, so he starts probing and finally he gets the CFO to change his story with the plea — plea bargain. Would that be part of the judicial process? Or is that still clearly investigatory?


JUSTICE BREYER: Well, also, you’re making me more worried because I think, if 85 percent of all the defendants — or 90 percent plead guilty, it might be a highly desirable thing to get prosecutors involved in the truth-discovering process, I mean, so that they don’t just see themselves as the job of — well, we’re going to take somebody, put them in jail. Maybe — maybe that’s a reason for pushing it back a little bit, this — this line.


MR. CLEMENT: I just wanted to say the incentive would really be perverse. Under Burns, if the police — if the police officer comes to the prosecutor and says — you know, we want to fabricate evidence to frame it, can we do it? And the prosecutor says, yes, you can do that, go ahead; there’s qualified immunity.

Now, if the prosecutor says, go ahead and let me help, there would somehow be absolute immunity. I mean, that is really an anomalous result, that it’s the n anomaly that caused this Court in Buckley to draw the line at probable cause.


CHIEF JUSTICE ROBERTS: I was going to suggest in response to your point that — you know, qualified immunity is really significant. Of course, it is, but we’ve recognized, in a number of contexts, in the judicial area, for example, that it’s — it’s not enough.

We have also recognized that in the prosecutorial area, and trying to draw the line where you do — I think this was one of the points Justice Alito was making, is that, sometimes, you’re investigating and preparing your case at the same time.

You don’t just sit back and say, I’m — I’m

just going to look and see what I can find. You have particular areas. The prosecution requires you to show four things, So you are looking at those four things. You are preparing your case, and you’re investigating



JUSTICE ALITO: In — in answer to Justice Breyer’s question, would — would it be a — would it be practical and conceptually correct to draw the line at the stage at which the prosecutor is interviewing witnesses to evaluate credibility?

So, at that stage, the prosecutorial function has begun and absolute immunity would kick in.



JUSTICE ALITO: Not on whether there is probable cause because probable cause is — is evanescent. It comes, and it goes. It is — it is -it is inextricably intertwined with what the prosecutor is doing in questioning the witness.



CHIEF JUSTICE ROBERTS: Well, your approach, then, encourages prosecutors to be trigger happy. They’re prosecuting right now because they know, then, that everything else, they have absolute immunity, so -you know, shoot first and ask questions later.



JUSTICE SCALIA: What — what does that prove? What does that prove? I don’t understand why you bring that up because it shows that the fact that there aren’t many cases, only 17 in the — in the Second Circuit, it doesn’t mean anything because the Second Circuit is not applying as liberal a rule as your opponent suggests.

Is that -


JUSTICE SCALIA: Yes. That’s — that’s just what I said, and, therefore — and had it been applied that way, there would have been more than 17 cases in the Second Circuit.



JUSTICE GINSBURG: Is anyone in this picture liable? The defendants have been incarcerated for some time, but when it blows up, they’re let out. No trial, but everything else, the same.



JUSTICE GINSBURG: You said — I think your position is that due process begins when trial is underway, and before that due process doesn’t enter the picture?



CHIEF JUSTICE ROBERTS: Thank you, Counsel. Counsel. The case is submitted.




Excerpted from article by Ashby Jones

The issue fell before the Supreme Court on Tuesday, in a case called Pottawattamie County v. McGhee. The case involves two former Pottawattamie County, Iowa, prosecutors being sued by Curtis W. McGhee Jr., and Terry Harrington, both of whom were convicted of first-degree murder and sentenced to life in prison in 1978 for the death of retired police officer John Schweer.

The men were released from prison after 25 years, after the Iowa Supreme Court found that the prosecution had failed to disclose exculpatory evidence to the defense. In the 1963 case Brady v. Maryland the court held that prosecutors violate a defendant’s due-process rights when they suppress material evidence that could lead to an acquittal or a lesser sentence. Specifically, McGhee and Harrington allege that prosecutors framed them by concealing evidence that pointed to another suspect and inducing a teenage witness to fabricate testimony. That witness and others later recanted their testimony.

McGhee and Harrington both brought civil rights actions against the county. A federal district judge rejected the prosecutors’ claim that they held absolute immunity from liability. The Eighth Circuit affirmed, and the case ultimately went up to the Supremes.

Click here for the AP writeup on the arguments; here for Tony Mauro’s take at the National Law Journal;  here for the Eighth Circuit opinion.

The plaintiffs were arguing that the county, through its prosecutors and officials, had violated their 14th Amendment due process rights. Section 1983 of the Civil Rights Act of 1871 allows individuals to bring constitutional claims against state officials.

And the defendants argued?

Immunity. In the 1993 case Buckley v. Fitzsimmons, the Supreme Court held that a prosecutor is immune from liability for acts that he or she took after launching a prosecution — that is, after he or she established probable cause. The defendants in this case are arguing that, based on the Buckley ruling, there was no due process violation before the trial, and therefore that they’re immune from liability and the case should be dismissed.

The question, of course, is why draw the line here. And that’s what seemed to animate the justices today — the policy implications of reaching one conclusion or another. Today, it seemed clear that the conservatives and liberals found different policy implications persuasive.

How so?

The liberals — and here’s the spoiler: along with Justice Kennedy — were troubled by the practical effect of the county’s theory. Under it, a police officer who fabricated evidence could be liable, as could a prosecutor who did so and then handed it off to a colleague to introduce in court. But a prosecutor who fabricated the evidence herself and then introduced it at trial would be immune.

Justice Kennedy put it this way: “So the law is: The more deeply you’re involved in the wrong, the more likely you are to be immune? That’s a strange proposition.”

Justice Sotomayor, herself a former assistant district attorney, was even more direct. “That makes no sense,” she said.

But the more conservative justices seemed to see it differently?

They did. Justice Alito, a former U.S. attorney, worried about opening the door to claims that would inhibit prosecutors from going after criminals. Both he and Chief Justice Roberts said there could be a “chilling effect” on zealous law enforcement if defendants could sue their prosecutors.

Justice Breyer shared the concerns of the other liberals, but he tried to balance them against law enforcement interests. “What is your most pro-prosecutorial rule that you could live with that will in fact minimize the risk?” he asked Paul Clement, representing the ex-prisoners.

Interesting. Any early guesses as to how the court might ultimately vote?

Let me recite the boilerplate disclaimer that the justices’ questions at argument do not necessarily predict future votes. That said, if it were lawful to wager on Supreme Court cases the odds might favor a classic 4-4 liberal-conservative split, with Justice Kennedy handing the tie to the ex-prisoners. The opinion will permit this lawsuit to proceed but be written narrowly to ensure that lower courts deny immunity only in the most egregious cases of prosecutorial misconduct. Chief Justice Roberts and Justice Alito seemed sure to dissent.

Justice Scalia is known as a law and order guy, but Clement — a former Scalia clerk — made a strong play for his old boss by arguing that prosecutorial immunity is a judge-made rule with no basis in either common law or statutory text. Scalia often says he bases his opinions on the original meaning of the legal text, so that argument might appeal. But Scalia also says he sometimes accepts precedents he might not have approved in the first place, under the doctrine of stare decisis.

Justice Thomas said nothing, as is his custom. He’s also a strong law and order judge, but he too says he relies on original meaning to decide cases, and considers precedent even less important than Scalia does.


Eight federal judges argue that Congress violated the Constitution when it nixed scheduled judicial pay hikes.

Tuesday, November 3rd, 2009

They want an appeals court to overturn its own precedent or let the case move to the Supreme Court.

Washington – Eight federal judges are continuing to press their claim that Congress violated the Constitution’s compensation clause when it failed to honor promised judicial salary increases in five separate years between 1995 and 2007.

A federal claims court judge threw out the judicial pay lawsuit on Oct. 16. Now the judges are asking for an expedited appeal before the entire Court of Appeals for the Federal Circuit.

Aside from the constitutional implications and growing complaints of low judicial pay, the dispute is interesting because the judges acknowledge that under the existing legal precedent – a 2001 decision called Williams v. United States – there is no way they can win their case. For the judges to prevail, the 2001 Williams precedent must be overturned.

The judicial pay dispute stems from congressional passage of the Ethics Reform Act of 1989. In it, Congress placed restrictions on a federal judge’s ability to earn outside income. At the same time, Congress established a system of cost-of-living adjustments tied to compensation increases for other federal workers.

The system was honored for several years, but Congress refused to abide by the pay increase mechanism in 1995, 1996, 1997, 1999, and 2007.

The heart of the dispute is whether these actions by Congress amount to a diminishment of judicial pay. Article III of the Constitution commands that federal judges “shall, at stated times, receive for their services, a compensation, which shall not be diminished during their continuance in office.”

In 2001, the Court of Appeals for the Federal Circuit ruled in the Williams case that judges are not constitutionally vested in any salary increase until the judge actually receives the adjusted salary.

Under that ruling, Congress is under no constitutional obligation to follow through on promised salary increases.

The eight judges disagree. They argue that upon passage of the Ethics Reform Act, the nation’s federal judges had a reasonable expectation in promised future salary adjustments. It is at that point that the judges acquired a vested interest in the salary increases, their lawyers argue.

The strategy in the new case, Beer v. United States, is to invite the appeals court to overturn the 2001 Williams decision and rule for the judges. Failing that, lawyers for the judges are asking the appeals court to issue a summary affirmance of the lower court’s dismissal. That would open the way for the case to move quickly to the US Supreme Court.

“Plaintiffs do not deny that their claims are foreclosed by the Williams precedent,” writes Christopher Landau in a candid appeals court petition filed on behalf of the judges. “Under that precedent, the decision below [dismissing the case] is so clearly correct as a matter of law that no substantial question regarding the outcome of the appeal exists.”

Mr. Landau writes that unless the entire Federal Circuit appeals court is prepared to overturn its Williams precedent, “plaintiffs would like to proceed expeditiously to the Supreme Court, and avoid any further unnecessary and unfair delay.”

The plaintiff judges in the case, Beer v. US, are US District Judge Peter Beer, retired US District Judge U.W. Clemon, US District Judge Terry Hatter, US District Judge Thomas Hogan, Federal Appeals Court Judge Richard Paez, US District Judge James Robertson, Federal Appeals Court Judge Laurence Silberman, and Federal Appeals Court Judge A. Wallace Tashima.

Family Court Judge Tamra Gormley suspended for 45 days without pay

Tuesday, November 3rd, 2009

 Woodford County Family Court Judge Tamra Gormley has been accused of judicial misconduct has been suspended for 45 days without pay and publicly reprimanded.

The Judicial Conduct Commission, the state’s judicial oversight body, ruled that Judge Tamra Gormley, whose district covers Scott, Woodford and Bourbon counties, inappropriately handled two cases: a domestic violence hearing in Scott County and a child custody hearing in Woodford County.

A third count against Gormley, which stemmed from a child custody case in Scott County, was dismissed because the commission said the charge was not proven by clear and convincing evidence.  Her attorney said they are contemplating an appeal.


The ruling says Gormley violated a man’s due process rights in a Scott County case. The commission said she held a man in contempt without advance notice and without his attorney present. Gormley did not witness the actions outside the courtroom that led to the contempt charge.

On the second count, the commission found that Gormley entered a change of custody order that removed a child from the custody of her father but denied the father the right to put on his own evidence. Gormley, the commission found, acted as an advocate for the mother in that case.

Oral arguments in Pottawattamie County et al. v. McGhee et al. will be heard by the U.S. Supreme Court on Wednesday Nov. 4, 2009. In this case the Supreme Court will decide if prosecutors are free from any personal liability for fabricating evidence during criminal investigations.

Monday, November 2nd, 2009





The claimants filed civil rights actions against Pottawattamie County, Iowa (County), and the former prosecutors and officers involved in the initial investigation and prosecution, arguing they used perjured and fabricated testimony and withheld evidence in violation of McGhee’s and Harrington’s constitutional rights. McGhee and Harrington also alleged Wilber defamed them.


Detectives Larsen and Brown relied on a statement obtained from a witness who had a long criminal record to incriminate the defendant.  The Detectives interviewed the witness (Hughes), telling him they knew he was involved in the car theft ring and the Schweer murder, but promised: (1) he would not be charged with the murder, (2) he would be helped with his other criminal charges, and (3) there was a $5,000 reward available, if Hughes helped the detectives with the Schweer murder. Hughes agreed to help.

-Amy Howe originally wrote the following for SCOTUSblog.

Can a prosecutor be held liable under Section 1983 for a wrongful conviction and incarceration stemming from the prosecutor’s procurement of false testimony during the investigation of a crime and the subsequent use of that testimony at the trial itself? Yesterday the Court agreed to consider this question in No. 08-1065, Pottawattamie County, Iowa v. Harrington. (Disclosure: Along with Tom Goldstein, I served as counsel on an amicus brief filed at the cert. stage on behalf of the National Association of Assistant U.S. Attorneys and the National District Attorneys Association.)

The case stems from the 1978 murder convictions of respondents Terry Harrington and Curtis McGhee. In 2003, the Iowa Supreme Court vacated Harrington’s conviction after finding that prosecutors had failed to disclose exculpatory evidence; McGhee entered an Alford plea to second-degree murder and was sentenced to the time already served in prison. The two men then filed a Section 1983 action against the prosecutors who convicted them, arguing that prosecutors had – among other things – coerced false testimony before trial and then used that testimony at trial. The prosecutors argued that they were entitled to immunity, but both lower courts rejected that claim. Instead, the Eighth Circuit held, the prosecutors’ procurement of false testimony violated respondents’ right to substantive due process; moreover, prosecutors were not entitled to immunity for that violation “where the prosecutor was accused of both fabricating evidence and then using the fabricated evidence at trial.”

The prosecutors filed a cert. petition in which they first argued that the Eighth Circuit’s decision conflicts with a decision of the Seventh Circuit holding both that the procurement of false testimony does not violate the Constitution and that the prosecutor is entitled to absolute immunity for the use of such false testimony. Second, the decision below conflicts with Supreme Court precedent, both generally and with regard to the Court’s “function test” for prosecutorial immunity. The prosecutors reason that respondents’ claims against them derive only from the use of the testimony against them – a stage at which they “plainly were functioning as ‘advocate[s] for the State’” and their conduct was covered by absolute immunity. “Thus,” they conclude, “there is no basis for any liability stemming from the alleged false testimony.”

Respondents Harrington and McGhee made similar arguments in their respective briefs in opposition. Both respondents disputed the prosecutors’ claim of a circuit split, emphasizing that in the Seventh Circuit case on which the prosecutors rely, one group of prosecutors coerced false testimony while another group used that testimony at trial. Contrary to petitioners’ characterization, they contend that the Eighth Circuit properly applied the functional approach in determining whether petitioners were entitled to immunity: “Absolute immunity does not apply to prosecutors’ actions taken outside the advocatory functions.” Respondent McGhee added that relief should be available under Section 1983 in cases such as this one to deter prosecutorial misconduct: otherwise, “[p]rosecutors would be free to fabricate evidence during criminal investigations because they would know there was virtually no possibility of ever being punished for it.”


Briefs and Documents


Issue: Whether a prosecutor may be subjected to a civil trial and potential damages for a wrongful conviction and incarceration where the prosecutor allegedly violated a criminal defendant’s “substantive due process” rights by procuring false testimony during the criminal investigation, and then introduced that same testimony against the criminal defendant at trial.

Merit briefs

Amicus briefs