Archive for December, 2009

Federal appeals court sets limits on police use of Tasers

Tuesday, December 29th, 2009


Dec. 28, 2009

A federal appeals court on Monday issued one of the most comprehensive rulings yet limiting police use of Tasers against low-level offenders who seem to pose little threat and may be mentally ill.

In a case out of San Diego County, the 9th U.S. Circuit Court of Appeals criticized an officer who, without warning, shot an emotionally troubled man with a Taser when he was unarmed, yards away, and neither fleeing nor advancing on the officer.

Sold as a nonlethal alternative to guns, Tasers deliver an electrical jolt meant to subdue a subject. The stun guns have become a common and increasingly controversial tool used by law enforcement.

There have been at least nine Taser-related fatalities in the Sacramento region, including the death earlier this month of Paul Martinez Jr., an inmate shot with a stun gun while allegedly resisting officers at the Roseville jail.

As lawsuits have proliferated against police and Taser International, which manufactures the weaons, the nation’s appellate courts have been trying to define what constitutes appropriate Taser use.

The San Diego County case is the latest ruling to address the issue.

The court recounted the facts of the case:

In the summer of 2005, Carl Bryan, 21, was pulled over for a seat-belt violation and did not follow an officer’s order to stay in the car.

Earlier, he had received a speeding ticket and had taken off his T-shirt to wipe away tears. He was wearing only the underwear he’d slept in because a woman had taken his keys, the court said without further explanation.

During his second traffic stop in Coronado, he got out of the car. He was “agitated … yelling gibberish and hitting his thighs, clad only in his boxer shorts and tennis shoes” but did not threaten the officer verbally or physically, the judges wrote.

That’s when Coronado Police Officer Brian McPherson, who was standing about 20 feet away watching Bryan’s “bizarre tantrum,” fired his Taser, the court said.

Without a word of warning, he hit Bryan in the arm with two metal darts, delivering a 1,200-volt jolt.

Temporarily paralyzed and in intense pain, Bryan fell face-first on the pavement. The fall shattered four of his front teeth and left him with facial abrasions and swelling. Later, a doctor had to use a scalpel to remove one of the darts.

Bryan sued McPherson, the Coronado Police Department and the city of Coronado, alleging excessive force in violation of his Fourth Amendment rights.

The officer moved to have the claim dismissed, but a federal trial judge ruled in Bryan’s favor.

A three-judge panel of the 9th Circuit affirmed the trial judge’s ruling on Monday, concluding that the level of force used by the officer was excessive.

McPherson could have waited for backup or tried to talk the man down, the judges said. If Bryan was mentally ill, as the officer contended, then there was even more reason to use “less intrusive means,” the judges said.

“Officer McPherson’s desire to quickly and decisively end an unusual and tense situation is understandable,” Judge Kim McLane Wardlaw wrote for the court. “His chosen method for doing so violated Bryan’s constitutional right to be free from excessive force.”

Some lawyers called it a landmark decision.

Eugene Iredale, a San Diego lawyer who argued the case, said it was one of the clearest and most complete statements yet from an appellate court about the limits of Taser use.

He said after Monday’s decision that courts will consider all circumstances, including whether someone poses a threat, has committed a serious crime or is mentally troubled.

“In an era where everybody understands ‘don’t tase me, bro,’ courts are going to look more closely at the use of Tasers, and they’re going to try to deter the promiscuous oversue of that tool,” he said.

That’s especially true in the context of those who appear to be emotionally disturbed or mentally ill, said Johnny Griffin III, a Sacramento plaintiffs lawyer.

Griffin represented the family of a troubled Woodland man who died under police restraint after being struck multiple times with Tasers.

In May 2008, Ricardo Abrahams walked away from a voluntary care facility and disobeyed the orders of officers called to check on his well-being. They shot him repeatedly with stun guns.

The case against the city of Woodland and its officers was settled in June for $300,000.

“I think it confirms what I and other lawyers in this area have been saying: You can’t treat a person with mental illness the same as someone without mental illness,” Griffin said.

Law enforcement authorities in Sacramento said they don’t expect Monday’s ruling to prompt much change.

Sacramento Police Department and Sacramento County Sheriff’s Department policies permit the use of force to gain control of a suspect or prevent harm to others.

“Certainly the officer should be able to articulate the reason the force (was used), and a mere resistance to comply may not be enough,” said Sheriff John McGinness.

Sgt. Norm Leong, spokesman for the Police Department, said his agency’s policy on the use of stun guns mainly covers safety considerations. It doesn’t list behaviors or situations that warrant using the devices, he said.

“Ideally, in every circumstance, we try to gain compliance verbally, and force is the last option we ever want to use,” he said.

Family Court Judge Tama Gormley Once Again Reprimanded by Judicial Conduct Commission

Monday, December 28th, 2009

The Kentucky Judicial Conduct Commission on Dec. 28th.  issued a public reprimand of Family Court Judge Tamra Gormley.  In a 5-1 vote, the commission found Gormley denied changes in child support payments to employees of Toyota Motor Manufacturing, their spouses and their ex-spouses.

Gormley ruled in May that no Toyota employee in three counties could have a modification to child support considered until the end of the year, even though the order wasn’t sought in two counties. Gormley rescinded the order in July.

Gormley was appointed in 2007 to a district that covers Scott, Woodford and Bourbon counties.

The Toyota plant is located in Scott County

New York Judge Censured for Recusals Over Lack of Pay Raise

Monday, December 28th, 2009

By Joel Stashenko  December 29, 2009

ALBANY – A western New York judge should be censured for trying to organize other judges to recuse themselves from cases involving the law firms of state legislators, who have denied the judiciary a pay raise since 1999, the Commission on Judicial Conduct said today.

Cattaraugus County Judge Larry M. Himelein (See Profile), one of the most vocal critics from the bench of the long pay drought for judges entered into the stipulated agreement with the commission on the censure. The panel voted 9-0 to accept the settlement.

Judge Himelein disqualified himself from 11 cases involving legislators or firms employing state lawmakers in a 10-month period beginning in September 2007, according to the commission. In e-mails to his colleagues, the judge acknowledged that he did so as a “weapon” in an attempt to compel the Legislature to grant the judiciary a pay increase.

“His stated aim … was inconsistent with a judge’s obligation to refrain from conduct that interfered with the proper performance of judicial duties, to act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary and to accord to every person who has a legal interest in a proceeding, or that person’s lawyer, the right to be heard according to law,” the commission’s ruling concluded.

Judge Himelein recused himself in matters involving Hiscock & Barclay, whose staff attorneys include Senator Neil Breslin, D-Albany, and Assemblyman Will Barclay, R-Pulaski, and also Harris Beach.

The commission’s ruling said Judge Himelein aggravated his conduct by writing a series of electronic mails to other state judges in which he belittled Assembly Speaker Sheldon Speaker, D-Manhattan, as a “slug” and state legislators in general as “clowns” and mocked other judges who declined to recuse themselves and join in a boycott of cases involving firms employing lawmakers.

“Chiding, browbeating and insulting judges who did not recuse (calling them ‘wusses,’ ‘non-self-respecting,’ ‘gutless,’ and ‘wimp[s]‘), denigrating downstate judges in particular (‘lackies’ and ‘toadies for the politicians’) and telling them to ‘grow some stones,’ respondent repeatedly urged his judicial colleagues to recuse en masse (‘How about everyone recuses by 5:00 today???’)” the commission’s ruling recounted.

Judge Himelein argued in letters he sent to Hiscock & Barclay and other firms that he would recuse himself in matters involving their cases because he considered himself conflicted by the pay raise dispute and the contribution he had made to the legal defense of one of the three cases in which the judiciary is suing the Legislature and the governor to force a court-ordered pay increase.

Court administrators warned judges that to recuse themselves from cases involving legislator-lawyers based solely on judges’ indignation over the lack of a pay raise was in violation of judicial canons and subjected judges to potential sanctions (NYLJ, May 13, 2008).

Judge Himelein, a former district attorney, also hears cases on Family Court, Surrogate’s Court and state Supreme Court benches in rural Cattaraugus County.


Friday, December 25th, 2009


 State judges in Iowa collect above-average salaries compared with their peers nationwide, but also have seen their net pay decrease in recent years, a review of court data shows.

District judges ranked 18th among states, appeals judges ranked 16th and associate high court judges ranked 14th in terms of pay this year, a national report published this month said.

The breakdowns showed that Iowa judges’ salaries climbed gradually for five years, until state budget cuts froze pay and forced all court employees to take 10 days of unpaid leave.


Salaries have not changed since 2008 in light of the recent cuts and are not expected to rise next year because of financial constraints.

But changes in state judges’ retirement accounts now require them to contribute more, which results in a net pay decrease, said Iowa courts spokesman Steve Davis. The contributions “will continue to climb over the next few years,” he said.

Iowa trial judges earned about $137,700 per year as of June 30, compared with the national average of $134,826, according to the latest annual report published this month by the National Center for State Courts. The median salary for trial court judges nationwide was $130,312.


The salary freezes in Iowa reflect a national trend as state legislatures wrestle with tight budgets, said Greg Hurley, a spokesman for the National Center for State Courts.

“The trend this year is nobody got a raise,” Hurley said. “This is the first time, since we started looking at this data, that we’ve seen such a dramatic lack of raises.”

The data do not include salaries of chief judges in trial or appellate courts, who earn more under the law. Iowa Supreme Court Chief Justice Marsha Ternus, for example, makes $170,850. The amounts are set by state lawmakers.

Judges below the district court level were not counted in the national report, but they generally make less than their counterparts. Iowa juvenile court judges, for example, make $122,400, while magistrates who handle misdemeanor cases and small-claims disputes part time earn $37,740.

Judicial salaries had been a priority for court officials before state revenue shortfalls forced lawmakers to tighten the budget.

In her 2008 State of the Judiciary speech, Ternus asked lawmakers to enact the final recommendations of an Iowa State Bar Association task force, which called for phased pay increases and cost-of-living adjustments.

Attracting experienced lawyers to serve as judges “may become increasingly difficult” if the pressures and demands of the job appear to outweigh the compensation, Ternus said.

“There is, however, something you can do to ensure that well-qualified attorneys continue to apply for judicial service,” Ternus said in the speech. “It is imperative that judicial compensation reflect the vital and increasingly difficult role judges play in our society.”


Judges’ salaries

Year Salary Rank
2009 $137,700 18
2008 $137,000 17
2007 $128,544 24
Year Salary Rank
2009 $147,900 16
2008 $147,900 15
2007 $136,739 20
Year Salary Rank
2009 $163,200 14
2008 $163,200 12
2007 $146,890 20
The data represent either actual salaries or the most representative figures available – either the base salary, the midpoint of a range between the lowest and highest supplemented salaries.

Senator McConnell Once Again Nominates Cincinnati Lawyer to Represent Kentucky Interests – Can’t he find qualified Kentucky lawyers for advancement?

Thursday, December 24th, 2009


Kentucky has 16,000 licensed lawyers.   Our state is full of highly competent lawyers who practice law here, were educated here, and have spent their adult lives as participants in legal activities here.  However once again our Senior Senator has nominated a Cincinnati lawyer to represent the interests of Kentuckians.

The last Federal Judge appointed in Kentucky was also raised elsewhere, practiced law for a Cincinnati law firm, and merely lived in Northern Kentucky where he commuted from to his job in Cincinnati before he was appointed U.S. Attorney for Kentucky and then was appointed to the Federal Bench.  Amul Thapar was appointed U.S. District Judge in 2006 by President Bush after being nominated by Sen. McConnell.  Thapur was the U.S. Attorney to whom then Attorney General Greg Stumbo sent 100,000 documents relating to the investigation of former Gov. Ernie Fletcher.  Other U.S. attorney’s had sought indictments and obtained convictions for other (Democrat) politicians who were charged for activities similar to those for which Fletcher was investigated. Thapur never acted on the allegations against Fletcher and was subsequently rewarded with appointment to the federal bench.

Before being appointed as a U.S. Attorney in Kentucky  Thapar was  assistant  U.S. attorney in Washington, D.C., from 1999 to 2000, and assistant for the Southern District of Ohio in 2002.

President Barack Obama in following precedent of honoring the wishes of the states’s senators  announced this week his intention to nominate lawyer John Nalbandian of Boone County to the board of the State Justice Institute.  Nalbandian, a Republican, was recommended to the nonpartisan board by Senate GOP Leader Mitch McConnell of Kentucky.

The institute was established by federal law in 1984 to award grants to improve the quality of justice in state courts and foster better coordination between state and federal courts. “I’m excited about it,” Nalbandian said. “I’m looking forward to it. It sounds like an interesting board.” There are a lot of interesting issues arising in state courts, he said, adding that it will be a way to see what state initiatives are working and could be expanded across the country.

The appointment, which requires Senate confirmation, will add Nalbandian as one of four public members of the 11-person board of the institute. Six members are sitting state court judges; one is a state court administrator. Nalbandian is a partner in the litigation department of Taft Stettinius & Hollister LLP in downtown Cincinnati.

He has represented clients in legal areas including antitrust, product liability, intellectual property, employment, white collar crime and class actions.

Nalbandian is a graduate of the University of Virginia School of Law, Nalbandian clerked for Judge Jerry E. Smith of the 5th U.S. Court of Appeals. He moved from the Washington area in 2000.

We assume that Nalbandian is highly qualified for the job. We also assume that Judge Thapur is well qualified.  However, we wonder why Senator McConnell can’t seem to find qualified Kentucky Republicans attorneys (or Democrats) for appointment to offices affecting Kentuckians.   We just don’t see why the list of lawyers with weak connections to Kentucky are favored over lawyers who have practiced law here. When McConnell became a U.S. Senator he abandoned the policy established by former Senator Wendall Ford to make bipartisan appointments to the federal bench.

Has the KBA Inquiry Commission and Bar Counsel Crossed the Line in Expanding Limits on Attorneys Free Speech Rights?

Wednesday, December 23rd, 2009

Has the KBA Inquiry Commission and Bar Counsel Crossed the Line in Expanding Limits on Attorneys Free Speech Rights? 

Editorial by LawReader Senior Editor Stan Billingsley -  Dec. 23, 2009

   SCR 3.130 8.2(4) has been used by the KBA Inquiry Commission to “warn” former State Senator John M. Berry Jr. of New Castle, Ky. that he was in violation of the Rules of Professional Conduct by writing a letter to the Legislative Ethics Committee criticizing their dismissal of a complaint filed by Common Cause against Senate President David Williams. Fn#1.  

Berry and the ACLU have responded with a Federal lawsuit against the Inquiry Commission seeking to declare SCR 3.130 8.2(4) unconstitutional and an infringement of his First Amendment Rights.

(A copy of the Berry letter is found on at:

 This letter is an exhibit in the pending Federal lawsuit by Berry and the ACLU against the Inquiry Commission. Berry in a separate  letter to the Inquiry Commission has specifically waived all rights to confidentiality.)

The rule cited by the Inquiry Commission in its “warning” to Sen. Berry states:

“ 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.”

In reviewing the documents issued by the Inquiry Commission and the Bar Counsel, filed with the Federal Lawsuit, we have been unable to determine what statements contained in Senator Berry’s letter were “false or with reckless disregard as to its truth or falsity…”.

The Inquiry Commission letter did not point out any specific language in the Berry letter to support or explain their action against Senator Berry. The Warning Letter issued to Berry by the Inquiry Commission, without providing any supporting explanation or supporting facts, stated in their letter to Senator Berry:

 “The Respondent violated (SCR 3.130 8.2(a) ) by publicly implying that the Legislative Ethics Commission did not conduct its review appropriately.”

    We note in the official Commentary which was adopted by the Ky. Supreme Court to explain SCR 3.130 8.2(4) the following guideline is used to explain the attorney’s rights:


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.

    The nexus of Senator Berry’s criticism of the Legislative Ethics Commission is that they found (in a closed door hearing) that Senator Williams was not responsible for the actions of people he apparently appointed to set up a meeting at which it is alleged that lobbyists were solicited to make donations to Republican Senatorial campaigns.  

We find no allegation in this Warning Letter that the Berry letter  made a claim of “corruption or unethical conduct” by the Legislative Ethics Commission.  We find no claim in the Berry letter in which he alleged that any officials of the Legislative Ethics Commission lacked the “qualifications or integrity” to serve on the Legislative Ethics Commission.

    The Kentucky Supreme Court has previously interpreted the rights of an attorney to speak out far more liberally than the current interpretation of the Inquiry Commission:

See:  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

    This broad interpretation of SCR 3.130 8.2(4) by the Bar Counsel office and the Inquiry Commission, in which they “warn” Senator Berry (for stating that the actions of the Legislative Ethics Commission were “inappropriate”) appears to create new limitations for attorney speech that will prevent any attorney from exercising his traditional constitutional rights and which up to now appear to have been authorized by the Official Commentary and by Court rulings.




   The Legislative Ethics Commission is created by Chapter 6 of the Kentucky Revised Statutes.

Pursuant to KRS 6.651 - Four of the nine members of the Commission are appointed by the

President of the Senate (i.e. in this instance that would have been Senator David Williams.

Four are appointed by the Speaker of the House (i.e. Speaker Jody Richards in 2007) and the

Ninth member is appointed by the Legislative Research Commission.  The LRC is Co-Chaired by

Senator Williams.


 The appointment of the ninth member of the Legislative Ethics Commission is appointed by a vote

of the  twenty members of the Legislative Research Commission.  This provides for ten

Republicans and ten Democrats pursuant to KRS 7.090:


” (2) The Legislative Research Commission shall be composed of the President of the Senate, the President Pro Tempore of the Senate, the Speaker of the House of Representatives, the Speaker Pro Tempore of the House of Representatives, the majority and minority floor leaders of the Senate and the House of Representatives, the majority and minority whips of the Senate, the majority and minority whips of the House, and the majority and minority caucus chairmen of the Senate and House of Representatives….”


By any consideration of the method of the selection of the makeup of the Legislative Ethics

Commission it must be concluded that Senator Williams had a significant role in the selection of

the Legislative Ethics Commission which dismissed the complaint against him.





The “Preliminary” phase is where the Commission determines if the complaint is

supported by probable cause.  See: “KRS 6.686 Complaint procedure — Preliminary

investigations…”  This phase is confidential, but confidentiality may be waived by the defendant.


The standard of proof required by KRS 6.686 is “probable cause” for a complaint to be

allowed to proceed to the second or adjudicatory phase.  In the Williams complaint, the Legislative

Ethics Commission only conducted a preliminary hearing, and dismissed the complaint against

Senator Williams. This dismissal was the subject of Senator Berry’s letter.  


Upon issuing the Warning Letter to Senator Berry, the Inquiry Commission dismissed the complaint

against him, thus denying him any appellate right.  This apparently shields the Inquiry Commission

from review of their action by the Kentucky Supreme Court.  It is possible that the Kentucky

Supreme Court is unaware of the investigation and “warning letter” issued to Senator Berry.


The second phase of the proceedings is styled an “Adjudicatory” proceeding and is governed

by “KRS 6.691 Adjudicatory proceedings — Action by commission — Appeal.”


” (1) The Kentucky Rules of Civil Procedure and the Kentucky Rules of Evidence shall apply to all commission adjudicatory hearings…

(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.”


This statute further separates the Preliminary phase from the Adjudicatory phase by KRS 6.686

Section (5) (b)  which states that if the Legislative Ethics Commission finds that there is

justification for the compliant to proceed, the LEC shall: 


“(5)(b) Initiate an adjudicatory proceeding to determine whether there has been a violation.”


This suggests that the LEC members do not become adjudicators until they have concluded in the

Preliminary phase that the complaint is adequately supported.


The two types of hearings authorized by Chapter Six are distinctly and separately discussed and

different rules of procedure are spelled out by statute for the two different types of hearings.


   These two statutes raise an interesting question in light of SCR 3.130 8.2(4) which is the only

Ethical Rule cited by the Inquiry Commission for the finding that Senator Berry acted



 SCR 3.130 8.2(4)  states:

“ 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.”

In the Berry case the Legislative Ethics Commission never conducted an “adjudicatory”  hearing

as described  in KRS 6.691.  They found at the Preliminary hearing that there was no probable

cause to support adjudication of a claim that Williams had violated the lobbying rule. The complaint

was therefore dismissed and never proceeded to the Adjudicatory phase.


The citation against Senator Berry, by the Bar Counsel, arose out of his criticism of the actions of

the LEC  taken in the Preliminary or investigative phase of the proceedings as identified in KRS



The ethical rule (SCR 3.130 8.2(4)) describes the protected class as “judge, adjudicatory

officer, or legal officer”.  This ethical rule would appear to only apply to Senator Berry if he made

inappropriate comments about an “adjudicatory officer“.


This raises a significant legal question.  Does the ethical rule which the Inquiry Commission claims

Senator Berry violated, protect “investigators”, or does it just apply to “adjudicators”?



Under the two statutes setting up proceedings under the Legislative Ethics Code found in KRS

Chapter Six. It can be argued that the Legislative Ethics Commission never acted in this

matter as adjudicators and therefore are not protected by SCR 3.130 (8.2(4).


By any definition, the Legislative Ethics Commission cannot be defined as Judges.  We don’t see

how they can be can defined as “public legal officers” and Chapter Six does not provide guidance

by defining the term “public legal officers”.


 It can be argued from Chapter Six, that the members of the Legislative Ethics Commission are only

entitled the protection by SCR 3.130 8.2(4) when they act as “adjudicators“, and since no

adjudicatory hearing was ever held, a strong argument is presented that SCR 3.130 8.2(4) never

applied to the actions of the Legislative Ethics Commission who only conducted an investigative

or “preliminary” phase proceeding.


If SCR 3.130 8.2(4) only applies to adjudicatory functions of the LEC, than it is difficult to see how

Berry’s letter  could have maligned an adjudicator since the complaint against Sen. Williams never

proceeded to the adjudicatory phase.


On Dec. 21st.. The Kentucky Enquirer interviewed Kenton Commonwealth Attorney Rob Sanders, and quoted Sanders comments about attorney Eric Deters who had filed two civil suits against Sanders. Both suits are currently pending.  Sanders is quoted in the Kentucky Enquirer referring to Deters:

“I guess a law license can be a dangerous thing in the hands of a crazy person.” 

As Commonwealth Attorney, Sanders is in the class protected by SCR 3.130 8.2(4.)  Does this mean that attorney Eric Deters cannot respond in kind? 

   This week Fayette County Commonwealth Attorney Ray Larson on his official web site published the following comments about UK Law School Professor Robert Lawson:

“Straight Talk from Ray the D.A. – A Prosecutor’s Blog

When It Comes To Our High-Crime Neighborhoods, The “Let Them Eat Cake” Crowd Is Alive And Well


There are limits to what our government will do, or even should do, to protect you from crime. That’s what anti-incarceration activist  Robert G. Lawson thinks. Here’s exactly what he said:

“A reduction in the prison population . . . would begin to sound a necessary warning that there are limits beyond which the state should not and will not go in its efforts to protect the public against the commission of a crime.”
Professor Robert G. Lawson, University of Kentucky College of Law

Just whose safety does Lawson think is not worth protecting? It doesn’t take much to figure that out. It is our fellow citizens who live in high crime neighborhoods that “the state should not and will not protect from crime.” So, to those who live in high-crime neighborhoods, Lawson’s attitude, from the safety of academia, is clear - “It’s not my problem – you deal with it!”

Lawson and his anti-incarceration accomplices remind me of Marie Antoinette’s legendary and condescending statement about the suffering and starving peasants in France. “Let Them Eat Cake,” she reportedly said.  She was really not concerned about the plight of the less fortunate French peasants who were starving to death while she lived in the lap of safety and luxury.

The same can be said about anti-incarceration advocate Robert G. Lawson and his accomplices in the legislature, academia and on editorial boards about crime in Kentucky. Crime and its impact is not a real big problem for them. Most of them live in relatively well-to-do, upper middle income, and mostly white neighborhoods. Crime doesn’t affect them much, because crime doesn’t happen much in their neighborhoods. They don’t face the constant concern for their safety or the safety of  their kids and grandchildren. Fear of crime really doesn’t appear on their radar screen. In their world, like Marie Antoinette’s, everything is just fine.

Not so for our high-crime neighborhoods. In these neighborhoods, everything is not just fine. Unfortunately, those neighborhoods are too often lower socio-economic and  predominately minority. The residents of these neighborhoods are afraid of crime and criminals. Their lives are affected by crime, and they expect our police and prosecutors, Judges, and jails and prisons to do everything possible to protect them from criminals.

So, in Lawson’s world, if you live in a high-crime neighborhood, you may be out of luck. Be advised you residents of high-crime neighborhoods, if Professor Lawson has his way, there are limits on what will be done or even what should be done to protect you from crimes and criminals.

The message from Lawson and his anti-incarceration gang is pretty clear:  “Not my problem. You deal with it. And, by the way, HAVE SOME CAKE!” “

    We believe that Larson is entitled under the First Amendment to express his comments about Professor Lawson.   That’s his opinion and while we disagree with the reasoning of his comments, (our stronger language is censored and chilled by the broad Inquiry Commission ruling) he has to right to express them.

But here is the problem. Under the language of the SCR 3.130 8.2(4) Ray Larson is a “public legal officer”.    Therefore, if Professor Lawson (who is an attorney subject to the Code of Professional Conduct) wishes to fire back at “Public Legal Officer” Larson, and defend himself, he is apparently subject to an ethics sanction under the current broad ruling of the Inquiry Commission.   

If Professor Lawson were to opine that it is inappropriate for Larson (who is subject to a “Minister of Justice” duty as a prosecutor) to express his political views on a web site. Or if Professor Lawson were to question if said web site posting… (Further comments are self-censored due to the chilling effect of the Inquiry Commission and Bar Counsel’s broad interpretation of SCR 3.130 8.2(4). )

SCR 3.130 8.2(4) identifies the class of protected officials and candidates as including:

 ”a judge, adjudicatory officer or public legal officer, or of a candidate for election or appointment to judicial or legal office.”  (The official Commentary to this SCR includes prosecutors and public defenders in the protected class).

Does the broad ruling of the Inquiry Commission mean that any mere attorney (or professor) can be criticized by a member of the protected class, but cannot respond in kind?  (Further comments are self-censored due to the chilling effect of the Inquiry Commission interpretation of SCR 3.130 8.2(4).)

Does the broad ruling of the Inquiry Commission mean that an attorney can never publically state (or even privately state) that a candidate for the office of Judge, Prosecutor, or an Ethics Commission member is not qualified for the office, or state that their actions are “inappropriate”? 

Does this ruling mean that a licensed attorney can never challenge a ruling of a judge?   If an attorney states that a judge’s ruling is “unsupported by the law” and that he/she “plans to appeal that ruling”, is this a violation of SCR 3.130 8.2(4)?

We opine that the original purpose behind the adoption of SCR 3.130 8.2(4) was to protect sitting judges from harassment by disgruntled attorneys who were currently appearing before he court in a pending case. 

 We note that the Legislative Ethics Commission is a Legislative  Branch  agency and quite distinct from a Court of Law.  A Judge is limited in his ability to defend himself in public comments by the Code of Judicial Conduct.  However there is no code of conduct which prohibits a member of the Legislative Ethics Commission to publically fire back at Senator Berry if they choose to do so.  LEC members are not restrained by the Code of Judicial Conduct.

We also note that Senator Berry attended the Legislative Ethics Commission meeting (until he was excluded along with nationally known author Wendall Berry, and the media) as a member of the public.  He did not represent any party to the Legislative Ethics Complaint proceedings.  He appeared as a private concerned citizen. He simply is not in the same class as a disgruntled litigate and his letter was written after the conclusion of the Legislative Ethics Commission proceedings, not during the proceedings and it is difficult to understand how his letter could have affected the ruling of the Legislative Ethics Commission.  

The United States Supreme Court has previously limited a Bar Associations control of speech by an attorney to comments which may improperly influence a pending trial.

See: Gentile v. State Bar of Nevada, 501 U.S. 1030, 111 S.Ct. 2720, 115 L.Ed.2d 888 (1991)

The “substantial likelihood of material prejudice” standard is a constitutionally permissible balance between the First Amendment rights of attorneys in pending cases and the State’s interest in fair trials. Lawyers in such cases are key participants in the criminal justice system, and the State may demand some adherence to that system’s precepts in regulating their speech and conduct. Their extrajudicial statements pose a threat to a pending proceeding’s fairness, since they have special access to information through discovery and client communication, and since their statements are likely to be received as especially authoritative. The standard is designed to protect the integrity and fairness of a State’s judicial system and imposes only narrow and necessary limitations on lawyers’ speech. Those limitations are aimed at comments that are likely to influence a trial’s outcome or prejudice the jury venire, even if an untainted panel is ultimately found. Few interests under the Constitution are more fundamental than the right to a fair trial by impartial jurors, and the State has a substantial interest in preventing officers of the court from imposing costs on the judicial system and litigants arising from measures, such as a change of venue, to ensure a fair trial. The restraint on speech is narrowly tailored to achieve these objectives, since it applies only to speech that is substantially likely to have a materially prejudicial effect, is neutral to points of view, and merely postpones the lawyer’s comments until after the trial. Pp. 1075-1076. (emphasis added by author)

   The Notice of Investigation issued by the Bar Counsel’s office appears to have kept Berry silent for l7 months from the date of the Notice of Investigation by the Deputy Bar Counsel informing him he was under investigation, to the formal finding of the Inquiry Commission which concluded that:

 “The Respondent (Berry) violated (SCR 3.130 8.2(a) ) by publicly implying that the Legislative Ethics Commission did not conduct its review appropriately”.

During that l7 months the immediacy of the public issue cooled and faded from the media. (Further comments are self-censored due to the chilling effect of the Inquiry Commission and Bar Counsel’s broad interpretation of SCR 3.130 8.2(4). )

The Federal lawsuit seeks damages and attorney fees.  It is presumed that any award issued by the Federal Court will be paid out of the dues that all attorneys are required by law to pay to the KBA.   Is this a wise use of our dues? 

   The Bar Counsel and the Inquiry Commission actions are generally subject to review by the Kentucky Supreme Court. Administratively the Bar Counsel and the Inquiry Commission are agencies of the Judiciary and controlled by the Supreme Court. Fn#1.  

 We ask rhetorically, why doesn’t the Kentucky Supreme Court or the KBA Board of Governors step into this matter, dismiss the finding of the Inquiry Commission, remove the warning letter from Senator Berry’s KBA file, spell out a new interpretation of SCR 3.130 8.2(4) which limits this rule to the original intended purpose (and which doesn’t chill the free speech of attorneys), issue a public apology to Senator Berry, and seek dismissal of the Federal lawsuit. 

We again point to the Supreme Court’s ruling in Kentucky Bar Ass’n v. Heleringer, 602 S.W.2d 165 (Ky., 1980) in which the court stated:

“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.”

In the alternative, we would suggest that the Inquiry Commission and the Bar Counsel justify their finding against Senator Berry, by publically and specifically issuing Findings of Fact pointing out the “charges of corruption or unethical conduct”  that the Heleringer decision requires before a sanction could be imposed on Berry by the Inquiry Commission.

After reading the documents filed in the Federal lawsuit we find no statement by the Inquiry Commission or the Bar Counsel, which specifically identifies the  “false claims” Senator Berry was found to have made?  The Inquiry Commission in their warning letter to Senator Berry did not point out or identify which statements in his letter were falsehoods. 

This expanded  application of SCR 3.130 8.2(4) by the Bar Counsel and Inquiry Commission sets a  precedent which if allowed to  stand, will limit the free speech of those citizens who are usually the best informed about judicial proceedings and questions of law (i.e. lawyers).  All lawyers will be excluded from public discussion and debate about judicial proceedings. This appears to ignore  the Ky. Supreme Courts policy as stated in Kentucky Bar Ass’n v. Heleringer, 602 S.W.2d 165 (Ky., 1980) which holds that lawyers are allowed the “right to criticize the courts and their decisions.”

(Further comments on this topic are self-censored due to the chilling effect of the Inquiry Commission and Bar Counsel’s broad interpretation of SCR 3.130 8.2(4). )


Footnote #1      KBA Website comment:

The Kentucky Bar Association, acting as an agency of the Supreme Court, is responsible for investigating complaints against lawyers practicing in this Commonwealth and for prosecuting charges of professional misconduct issued by the Inquiry Commission.  The Inquiry Commission is an independent body appointed by the Court to receive and process complaints from any source which allege professional misconduct by lawyers.  The Office of Bar Counsel provides administrative support to the Inquiry Commission, investigates complaints and prosecutes charges.   

Authors note:  This editorial was submitted to the Ethics Hotline on Monday Dec. 21st. for their opinion as to whether or not this editorial violated the Rules of Professional Conduct.  On Wednesday Dec. 23rd. the Ethics Hotline advised the author that this editorial did not violate the Rules of Professional Conduct.

This published draft has added some spelling corrections, one hypothetical anecdote, and a web address for the letter Senator Berry wrote and which resulted in the “warning” letter sent to him by the Inquiry Commission. These are the only changes made from the version sent to the Hotline for review.


Wednesday, December 23rd, 2009

    On Nov. 25, the high court, in a 4-3 vote the Michigan Supreme Court changed its rules on when justices should be banned from deciding cases. The old rule was that justices decided for themselves when they should be recused, which is the same way the U.S. Supreme Court does it. The new rule still allows justices to decide for themselves when to step off a case. But if a justice decides not to step down, the entire Supreme Court can second-guess the justice’s decision and kick him or her off the case. The old rule took effect when the justice was in fact biased, but the new rule forces a justice off when he merely appears biased in the eyes of a majority of four other justices.

U.S. Supreme Court Cites Emergency Exception and Allows Warrantless Entry of Home by Police

Tuesday, December 22nd, 2009

When can police enter a house without a warrant under the emergency aid exception to the Fourth Amendment?  The court held: Officers need only an objective reasonable basis for believing that medical assistance is needed or someone is in danger.

The Case: Michigan v. Jeremy Fisher, Docket No. 09-91 (2009)


The U.S. Supreme Court has ruled that police did not violate a man’s Fourth Amendment rights by entering his house under the emergency aid exception, even after he told them to get a search warrant, the U.S. Supreme Court ruled Dec. 7.

The decision allows police greater latitude in deciding whether to enter a dwelling without a warrant, requiring only an “objectively reasonable belief” that aid is needed, rather than “ironclad proof” of a threat.

In Michigan v. Jeremy Fisher, Docket No. 09-91, Brownstown Township police arrived at the defendant’s house to respond to a complaint that Fisher was “going crazy. “

They found a pickup truck in the driveway with a smashed front end, a damaged fencepost along the side of the property, and three house windows broken from the inside. They also noticed blood on the hood of the truck, on clothes inside the truck, and on one of the doors to the house. The back door was locked, and a couch was blocking the front door.

The officers looked in a window and saw Fisher screaming and throwing things. There was some dispute as to whether he had some blood dripping from his hand. The officers asked him if he needed help, to which he responded by swearing at the police and told them to get a search warrant.

One of the officers pushed the front door open and tried to enter, only to find Fisher pointing a rifle at him. Fisher was arrested for assault with a dangerous weapon and possession of a firearm during the commission of a felony.

The circuit court dismissed the charges on grounds that the officer entering the house violated Fisher’s Fourth Amendment rights. The Michigan Court of Appeals upheld the trial court in an unpublished decision.

The Michigan Supreme Court originally agreed to hear the case, but, after hearing oral arguments, vacated its leave order.

The U.S. Supreme Court granted the Wayne County Prosecutor’s Office’s petition for certiorari, and reversed the Michigan courts without further briefing or oral argument.

In a per curium decision, the 7-2 majority wrote that the Court of Appeals’ decision was contrary to Fourth Amendment case law, particularly Brigham City v. Stuart (547 U.S. 398), which involved police entering a house to break up a fight.

The “emergency aid exception,” the court explained, applies when “the exigencies of the situation [may] make the needs of law enforcement so compelling that the warrantless search is objectionably reasonable,” such as when “the need to assist persons who are seriously injured or threatened with such injury. “

“Thus, law enforcement officers ‘may enter a home without a warrant to render emergency assistance to an injured occupant or to protect an occupant from imminent injury. ‘”

The court took issue with the Michigan Court of Appeals’ holding that the situation did not rise to a level of emergency justifying the warrantless intrusion into a residence, because the mere drops of blood did not signal a likely serious, life-threatening injury.

“Officers do not need ironclad proof of a ‘likely serious, life-threatening’ injury to invoke the emergency aid exception,” the court said.

In the dissent, Justice John Paul Stevens argued that the court was being too hasty in overturning the Michigan court “when faced with a close question of reasonableness of an officer’s actions” without further probing into the facts of the case. He did not opine on the merits of the majority decision.



Tuesday, December 22nd, 2009

  Independence attorney Eric Deters has filed two separate lawsuits on behalf of two different clients against Kenton Commonwealth Attorney Rob Sanders.  If a judgment is actually entered against Sanders, he most likely will be protected financially by KRS 15.753 which provides for compensation against civil judgments rendered against Kentucky prosecutors.

(The following is an excerpt from Prosecutorial Accountability a book authored by retired Judge Stan Billingsley and published by LawReader Press. The book is available from LawReader at 314 7th. St., Carrollton, Ky. 41008 – or call 502-732-4617)

   “The Kentucky Legislature has adopted legislation which makes the state liable for any damage award for acts of a prosecutor which occurred within the scope of his authority and done in good faith.  This statute provides for compensation to be paid a civil litigate who successfully sues a prosecutor and obtains a judgment.  Having done that, however, they added Section (5) which, when caselaw is applied, makes this virtually impossible.  Current Kentucky caselaw imposes absolute immunity for acts, regardless of their legality, if they were done within the scope of the prosecutors role as an advocate.

KRS 15.753 Indemnification from financial loss in legal actions for Attorney General, Commonwealth’s attorneys, county attorneys, and their staffs.

(1) This section shall apply to:

(a) The Attorney General and his staff;

(b) A county attorney and his staff; and

(c) A Commonwealth’s attorney and his staff.

(2) A person named in subsection (1) of this section who is sued for any act or omission in the course of his duties and who has a judgment for monetary damages rendered against him and who personally suffers actual financial loss, unreimbursed from any source, by the enforcement and satisfaction of the judgment, including any costs or attorney’s fees awarded pursuant thereto, shall be indemnified by the Commonwealth from funds appropriated to the Finance and Administration Cabinet for the payment of judgments, to the extent of his actual financial loss.

(3) The indemnification shall be contingent upon an express determination by the Prosecutor’s Advisory Council that the act or omission which resulted in liability was within the scope and course of the officer’s employment and occurred during the performance of duty and was committed or omitted in the good faith belief that the act or omission was lawful and proper.

(4) If the officer seeking indemnification is the Attorney General, the determination referred to in subsection (3) of this section shall be made by the Governor.

(5) The indemnification shall not be construed to abrogate or limit any privilege, immunity, or matter of defense otherwise available to the person claiming indemnification and shall not constitute a waiver of any privilege, immunity, or matter or defense including the sovereign immunity of the Commonwealth.

(6) The indemnification shall not be the subject of comment, directly or indirectly, before any jury hearing any cause of action in which the Attorney General, a county or Commonwealth’s attorney, or a member of their staff is a party, and any comment before the jury shall result in an immediate mistrial.

Effective: July 15, 1994″.

Federal Court of Appeals Accuses California Attorney General Lawyers of Lying

Tuesday, December 22nd, 2009


San Francisco Chronicle    Dec. 22,2009

SAN FRANCISCO A federal appeals court bluntly accused the Schwarzenegger administration and state Attorney General Jerry Brown’s office on Monday of  lying about its defense of cuts in Medi-Cal fees.

Lawyers in Brown’s office committed a “clear violation” of State Bar rules that prohibit attorneys from  misleading judges, raising doubts about the credibility of any future statements they make on behalf of state health officials, said the Ninth U.S. Circuit Court of Appeals in San Francisco.

The court said health officials, through their lawyers, had lied about why the state waited more than a year to make its current arguments in the case.

Brown’s office said the court’s comments were “based on a misunderstanding” that the state’s lawyers will try to clear up in the next few days.

In July, the court ruled that the state had violated federal law with 2008 legislation that cut by 10 percent the rates it paid to doctors, dentists, pharmacists, clinics and adult day health care centers serving 7.1 million poor people in the Medi-Cal program.

The ruling required the state to reimburse health care providers hundreds of millions of dollars that the state cut from their fees from July 2008 to March 2009, when a new law took effect setting rates at 1 to 5 percent below July 2008 levels.

The court said state health officials and legislators were simply trying to save money and did not study how the cuts would affect Medi-Cal patients, as federal law requires.

On Monday, the same three-judge panel rejected the state’s claim that the court lacked authority to prohibit the 10 percent rate cuts in July because the law requiring those cuts had expired March 1. The court said it still could order reimbursement, which the state has yet to pay.

The allegations of lying involved the state’s failure to cite the change in reimbursement rates in arguments before the appeals court issued its July ruling. The court noted that the modified reductions were approved in September 2008 and took effect in March, but the state did not mention that fact, or argue that it was important, until its recent appeal that sought to set the July decision aside.

State officials explained that their lawyers became aware of the legal issue only recently while preparing a potential U.S. Supreme Court appeal, the court said Monday.

In fact, the panel said, the state had already filed Supreme Court papers June 1, in an earlier Medi-Cal case, that discussed the latest change in rates and how it affected the appeals court’s jurisdiction over the issue.

Health officials “feigned ignorance” of the facts they had already presented to the Supreme Court, the appeals court said. Citing State Bar rules that forbid attorneys to mislead judges by making false statements, the court said state lawyers’ “clear violation … gives us pause about accepting the veracity of future pleadings filed by the attorney general on behalf of the (state health) director, if not more generally.”

In response, Brown’s office said it had not tried to hide the March rate change, which was well known to all sides in the case. Instead, the attorney general said, the state focused only recently on an argument that the change deprived the court of jurisdiction over the case.

The argument was made “entirely in good faith,” the attorney general’s office said in a statement. The office promised a filing in the next few days that would clear up the confusion.

But a lawyer for plaintiffs in the case said the court was on the mark.

Brown’s Los Angeles office, which handled the appeal, “has consistently lied and misrepresented statements of fact and law throughout the litigation,” said Lynn Carman, attorney for a group of pharmacists. “It is gratifying that the Ninth Circuit has now called a spade a spade.”

Eric Deters files Second Lawsuit in a month naming Kenton Commonwealth Attorney Rob Sanders as Defendant.

Tuesday, December 22nd, 2009


Independence  attorney Eric Deters has filed a lawsuit on behalf of his client Terry Williams Jr. alleging malicious prosecution by Kenton Commonwealth Attorney Rob Sanders. The suit claims that  criminal charges were brought by Sanders in retaliation for Williams filing a federal civil rights lawsuit against the police. The federal case is pending in U.S. District Court in Covington.

In the Federal civil suit, Williams claims he was shocked more than 20 times by a stun gun, sprayed with a chemical irritant and beaten with baton by the police. He was then taken to the hospital but not arrested. Some of the struggle between Williams and officers was recorded on cameras mounted on police cruisers.  Williams wasn’t criminally charged until after he filed the civil suit in federal court more than 30 days later.

Earlier this month Deters filed another malicious prosecution claim against Sanders which alleges that Sanders improperly prosecuted Dayton School teacher Nicole Howell of a claim that she had sex with a l6 year old male student.  The jury acquitted Howell.

There is apparently no love lost between Deters and Sanders.  Sanders was quoted by the Kentucky Enquirer in his response to the second lawsuit filed in a month against him by Deters clients, and reportedly said:

 “I guess a law license can be a dangerous thing in the hands of a crazy person.”

Deters wrote in a press release. “It is another example, like Nicole Howell, of Rob Sanders and in this case, the Kenton County police, going after someone with great malice.”

The state suit says. defendants, with malice, filed criminal charges against plaintiff without probable cause and with the sole purpose of attempting to coerce plaintiff to drop the civil lawsuit.”   

Williams was ultimately found guilty of disorderly conduct, resisting arrest and second-degree wanton endangerment, a misdemeanor.

Sanders said: “I’ve never been sued by another defense attorney,” …“Obviously, I think everyone can see a pattern here.” … “I don’t know how you sue someone for malicious prosecution when their client already pled guilty.”


Williams was convicted of

The state suit in behalf of Williams asks for $5 million in compensatory damages and $10 million in punitive damages.

Another lawsuit was filed by Williams against

COVINGTON – A man who pleaded guilty to crimes relating to his walking naked along Interstate 75 in July 2007 has sued the prosecutor and police who brought the charges against him. Terry Williams Jr.’s attorney, Eric Deters, filed the complaint Monday in Kenton Circuit Court. It claims the criminal charges were brought in retaliation for Williams filing a federal civil rights lawsuit against the police. The federal case is pending in U.S. District Court in Covington.

“I don’t know how you sue someone for malicious prosecution when their client already pled guilty,” said Kenton Commonwealth’s Attorney Rob Sanders, one of the defendants in the suit. “I guess a law license can be a dangerous thing in the hands of a crazy person.” This is the second time this year that one of Deters’ clients has filed a suit against Sanders claiming malicious prosecution. Fired Dayton High School teacher Nicole Howell filed a similar suit in federal court after she was found not guilty of having sex with a 16year-old student.

“It is another example, like Nicole Howell, of Rob Sanders and in this case, the Kenton County police going after someone with great malice,” Deters wrote in a press release.

Sanders said he could not address the allegations until he reads the suit. Sanders had not been served a copy of the suit as of Monday afternoon.

“I’ve never been sued by another defense attorney,” he said. “Obviously, I think everyone can see a pattern here.” Also named as defendants are Kenton County Police Chief Ed Butler and three of his officers.

The state suit asks for $5 million in compensatory damages and $10 million in punitive damages.

The suit claims Williams was shocked more than 20 times by a stun gun, sprayed with a chemical irritant and beaten with baton. He was then taken to the hospital but not arrested. Some of the struggle between Williams and officers was recorded on cameras mounted on police cruisers.

Williams wasn’t criminally charged until after he filed the civil suit in federal court more than 30 days later.

“The defendants, with malice, filed criminal charges against plaintiff without probable cause and with the sole purpose of attempting to coerce plaintiff to drop the civil lawsuit,” the state suit says.

Williams was ultimately found guilty of disorderly conduct, resisting arrest and second-degree wanton endangerment, a misdemeanor.




Judge Gayle Hoffman of Campbell Family Court is inviting applications for a Law Clerk.

Monday, December 21st, 2009

The job pays $26,220 a year.  Applicants must be a licensed lawyer.

 Job Required Knowledge


Job Skills/Abilities



Job Duties








Internal Deadline : 12/25/2009 External Deadline : 12/25/2009

Court of Justice Applications must be received by close of business or postmarked by the appropriate deadline. These

applications should be submitted to:


Judge Gayle Hoffman

Campbell Family Court

330 York Street

Newport, KY 41071



The Court of Justice Personnel Policies Section 6.03(2) prohibits the hiring of retired state government employees.

Equal Opportunity Employer

Government searches limited – judicial ruling involving drug tests for athletes has blossomed into a huge Fourth Amendment case

Friday, December 18th, 2009

A controversial and surprisingly overlooked judicial ruling has placed unprecedented restrictions on the federal government’s ability to seize information stored on personal computers, e-mail servers, and other ubiquitous electronic devices. The decision, which the Obama administration says has halted or stymied several ongoing criminal investigations, has established new requirements for obtaining computer search warrants that even supporters of enhanced privacy protection think might be unconstitutional.

Among other things, the Appeals Court’s guidelines require investigators to forgo the use of a well-established doctrine that allows them to collect information as evidence even when it is not what investigators intended to find. The case stems from a probe of steroid use by professional baseball players and the potentially damaging information that federal agents discovered when they seized a drug-testing company’s computers.

In August 2008, the U.S. Court of Appeals for the 9th Circuit, which covers most Western states, found that government agents had improperly seized the test results of hundreds of ballplayers when the agents had warrants for only 10 players under investigation. The government has argued that it should be allowed to keep all of the records because they were found in the “plain view” of law enforcement officers. The records were mingled in a computer directory with those of other people whom the company had tested, including athletes from other sports and some who weren’t professional athletes.

The “plain view” doctrine is a long-standing practical tool for searching physical spaces. If police officers who are searching a home for cocaine, for instance, find automatic weapons lying on a coffee table, they can seize them as evidence of illegal weapons possession. In searches of vast electronic data stores, however, which require investigators to root through various drives, directories, and folders, the rules of plain view are murky.

Three U.S. District judges, who had initially granted subpoenas and warrants for the 10 players, ordered the government to return the extraneous information. The government appealed to the 9th Circuit, and Chief Judge Alex Kozinski, in a withering opinion for the 9-2 majority, accused investigators of trampling the privacy rights and reputations of hundreds of people who had done nothing to alert the authorities’ suspicion. Indeed, the baseball players had agreed to submit urine tests only after winning assurances from league officials that their results would be kept confidential and used only to determine how widespread steroid use really was.

“This was an obvious case of deliberate overreaching by the government in an effort to seize data” for which “it lacked probable cause” to think that anyone had done anything wrong, wrote Kozinski, a Reagan appointee often cited for his libertarian opinions. “The privacy and economic well-being” of the other players “could easily be impaired if the government were to release the test results swept up in the dragnet,” he said.

Kozinski’s opinion amounts to a concise and forceful description of the unique threats to Fourth Amendment prohibitions on unlawful searches and seizures in the Information Age. The government has long argued, as have experts in digital forensics, that criminals routinely hide incriminating records on computers by encrypting them, placing them in innocuously named files, or rigging the material to delete itself when outsiders access it. Investigators often have to rifle through the entire contents of a computer hard drive or look beyond one machine on a network to the others with which it shares data to find the information for which they have a legal warrant. Kozinski said he had “no cavil” with this conundrum, but he passionately argued that the court had to draw a line somewhere to stop targeted investigations from turning into fishing expeditions.

“If the government can’t be sure whether data may be concealed, compressed, erased, or booby-trapped without carefully examining the contents of every file… then everything the government chooses to seize will, under this theory, automatically come into plain view,” Kozinski wrote. “Since the government agents ultimately decide how much to actually take, this will create a powerful incentive for them to seize more rather than less…. Let’s take everything back to the lab, have a good look around, and see what we might stumble upon.”

Kozinski didn’t just assail the government’s use of the plain view doctrine. He issued guidelines for all future cases in the 9th Circuit involving digital evidence. First among them: Magistrates authorizing computer search warrants “should insist that the government waive reliance upon the plain view doctrine.” What’s more, agents investigating a case must not comb through the seized data themselves but farm that task out to “specialized personnel or an independent third party,” which should be authorized to give the government only the information spelled out in the warrant and nothing more.

According to the Obama administration, judges are following Kozinski’s guidelines — to calamitous effect. U.S. Solicitor General Elena Kagan filed a brief with the Appeals Court stating, “In some districts, computer searches have ground to a complete halt, and, throughout the circuit, investigations have been delayed or impeded.”

Civil-liberties advocates have sharply criticized the Obama White House for its embrace of the George W. Bush administration’s broad authorities for electronic surveillance of spies and terrorists. But the Obama Justice Department fired back at Kozinski’s ruling, defending with equal vigor the government’s right to search computers in domestic criminal cases. In the government’s brief, which argues for an unprecedented en banc hearing of all 27 judges on the 9th Circuit Appeals Court, the administration said that the 11-judge panel “stepped outside [its] proper role” by issuing the new guidelines, which “a widespread consensus” among judges views as “binding” and “mandatory.”

The administration offered a selection of cases demonstrating that investigators were “chilled” from seeking new warrants at all. One of the most startling involved federal agents in San Diego who were investigating two men accused of raping a 4-year-old girl and swapping images of the crime over the Internet. The administration claimed that the agents did not seek a warrant for the men’s computers, “because of concerns that any evidence discovered about other potential victims could not be disclosed.”

The government argues that the new guidelines will block investigators from a wealth of vital information because the rules ignore the peculiar nature of digital searches. A spokesperson for the solicitor general’s office declined to elaborate on the case or the government’s brief.

Legal experts following the case agreed that it received remarkably little media or scholarly attention, given its potential implications. But they differed on which aspect was more significant — the restrictions on federal investigators or the enhancement of privacy protections.

“In terms of the decision, I’ve never seen anything like it,” said Orin Kerr, a professor at the George Washington University Law School. “It’s pages and pages of guidance without citing any authority [to issue it]. And it has everybody scratching their heads.

“Searching somebody’s personal computer can reveal a tremendous amount of information about them,” said Kerr, who concluded in a Harvard Law Review article four years ago that the plain view practice “may need to be narrowed or even eliminated in digital evidence cases to ensure that digital warrants that are narrow in theory do not devolve into general warrants in practice.” In this case, however, the court got to that solution “indirectly,” Kerr said, by taking the unusual step of issuing the search guidelines. “Judges aren’t supposed to do this. In fact, they’re told not to.”

But Steve Kalar, the senior litigator for the federal public defender’s office in San Francisco, welcomed the guidance, noting that federal investigators routinely search seized computers for evidence of other crimes — particularly possession of child pornography — by conducting general scans of hard drives. “It’s a technological fallacy to say that an agent is tripping through the computer and finds this,” he said.

Kalar called the government’s claims of halted investigations a “tempest in a teapot,” an attempt to “make [the ruling] appear it has broader impact than it really does.” Kerr said that officials were “overstating a little bit” the breadth of the chilling effect, “but they’re basically right. This threw an incredible amount of uncertainty into the rules.”

The new search guidelines, which the full 9th Circuit or the Supreme Court could overturn, don’t affect computer searches by intelligence agencies, which are governed by a different law and overseen by a special court. But in objecting to Judge Kozinski’s new guidance, the Obama administration is making claims similar to those of Bush-era intelligence officials, who contended that technology has outstripped the law’s capacity to keep pace with terrorists.

Federal officials argued in their brief that if investigators follow Kozinski’s guidance, “before a search commences, case agents will need to spend days, weeks, or even months teaching both the underlying law and the specifics of the particular case to members of a filter team” — the third party set up to review the seized data. “These concerns will be particularly acute in cases involving national security, because spies and terrorists often receive specialized training about concealing their tracks.”

Frustrated with fantasy football? Try Fantasy Supreme Court – New Web Site Lets you predict outcome of upcoming decisions

Thursday, December 17th, 2009


  • predict the outcome of high court cases  –Students can play the game for free; others can play for $10 or less

Washington (CNN) — Forget about baseball, football and the Academy Awards. The hottest new fantasy-league game involves the Supreme Court.


A month-old Web site called allows people to predict all of the high court’s pending cases.


Josh Blackman, a law clerk for U.S. District Judge Kim Gibson in Johnstown, Pennsylvania, created the game in his spare time.


“In the digital age, everyone has an opinion and is eager to share it,” Blackman said. “They know how a case will come out, and this gives them a way to play a justice.”


The growing fantasy league has 2,000 members, mostly students, who can sign up for free. Professionals and other individuals can join for $10 or less.


The rules are simple. Thirteen points are up for grabs in each case, and they are awarded as follows:


• One point for correctly predicting the outcome;

• Three points for correctly predicting how the vote is split — for example, 5-4 or 6-3;

• And one point for every justice’s vote correctly predicted.


The court will hear about 80 cases before wrapping up in late June. Blackman said the league’s winner will then receive the first “Chief Justice Award.”


The court itself is not involved in FantasySCOTUS, and it does not endorse it. Court sources say, however, that several justices are aware of the fantasy league and find it interesting. Blackman said that to his knowledge, no judges — federal or state — have signed up to play.


“Most of the participants are students, I’d say about 90 percent,” he said. “I’ve been contacted by high schools and middle schools across the country. Teachers are having their students play. They say it’s a great way to get them involved in understanding the Constitution and how laws are interpreted. They can wrap their hands around it. It’s an experience you don’t get by just reading a text.”


The case everyone is now following, Blackman said, deals with a potential overhaul of federal campaign spending. Such an overhaul could give corporations and labor unions more power to spend their own money on political messages.


So far, about two-thirds of FantasySCOTUS players predict the conservative-majority court will undercut the current spending limitations imposed by Congress. A ruling isn’t expected until next month at the earliest.


Blackman said the campaign spending case inspired him to create his Web site last month.

“A friend asked me how I thought the case might turn out, and I wondered, ‘If [Las] Vegas put odds on it, what would it be?’ ” Blackman said. “And I thought, why not create a site to do just that?”

Blackman said no money is wagered on his league, which requires serious gamers to do at least some research on current and past cases.


“We’ll never know what goes on behind chambers, when the justices decide these very important cases,” he said. “But when you get past the grandeur, the mystery of the court, this league is something where anybody can participate. It’s not just for the legal nerd. The cases come down to facts, to law. It makes people feel like they are more involved in understanding what goes on up there.”

U.S. Supreme Court Refuses Review of Immunity of Gun Manufacturer’s Law

Monday, December 14th, 2009

Dec. 14, 2009 – The Supreme Court has turned away a new challenge to a 2005 law that gives gun manufacturers immunity from lawsuits by shooting victims.

The justices on Monday refused to hear an appeal from Hector Adames Jr. to revive his lawsuit against the Beretta U.S.A. Corp. over the accidental shooting death of his 13-year-old son.

The Illinois Supreme Court threw out the lawsuit, citing the federal 2005 Protection of Lawful Commerce in Arms Act.

Adames’ son, Josh, was shot and killed by 13-year-old Billy Swan, who found his father’s Beretta and removed the magazine containing the ammunition. He pointed the gun at Josh and pulled the trigger, not knowing that a bullet remained in the chamber.

Adames sued Beretta, saying the gun did not have the proper warnings or a safety mechanism that stops the gun from being fired without the magazine in place.

The case is Adames v. Beretta, 09-253.


Saturday, December 12th, 2009

The Univ. of Tennessee is alleged to have being using up to 100 attractive co-ed hostesses to meet and greet recruits for UT athletic teams.   Have the Hostesses crossed the line?

A news report contained the following comments about the conduct of the hostesses:

“Keith Easterwood, a veteran summer basketball coach, said that on a visit last year with his son, a football recruit, he had to ask a hostess to stop brushing her breasts against both him and his son. He recalled saying, “Young lady, if you don’t stop doing that, we’ve got a problem.”

Easterwood said that he took a group of basketball players to a Western Kentucky football game at Tennessee this year, and that the presence of the hostesses had his players “literally reduced to blubbering idiots.”

“I’ve been up there five times, four for football and one basketball visit,” Easterwood said. “My observation is that this is a very organized operation. These girls have obviously been groomed. There’s a lot of eye contact and touching.””

U.S. Supreme Court Upholds 6th. Circuit Ruling that (RICO) Racketeering Suit May Proceed Against Employer and Worker’s Comp. Insurance Adjustor for conspiring to deny Benefits – It is claimed they sought fraudulent medical opinions and unqualified doctors to defeat worker claims

Thursday, December 10th, 2009

December 10, 2009

Court has declined to hear a workers’ compensation case from the U.S. Court of Appeals for the 6th Circuit in which the appeals court found that the plaintiffs could sue their employer and its workers’ compensation claims adjuster under federal racketeering laws.

In Paul Brown et al. vs. Cassens Transport Co. et al., the six plaintiffs alleged that the defendants – Cassens Transport Co., Crawford & Company, and Dr. Saul Margules - had schemed to deny them workers’ compensation benefits under the Michigan Worker’s Disability Compensation Act (WDCA) in violation of the Racketeer Influenced and Corrupt Organizations Act (RICO).

The plaintiffs were current or former employees of the trucking company, Cassens, which was self-insured for workers’ compensation; Crawford was the company’s workers’ comp claims adjuster.

In their lawsuit filed June 22, 2004, the plaintiffs alleged that “Cassens, Crawford, and Margules, as well as other ‘cut-off’ doctors, engaged in a pattern of racketeering activity that denied the plaintiffs’ worker’s compensation claims,” the appeals court wrote.

“Specifically, the plaintiffs alleged that Cassens and Crawford deliberately selected and paid unqualified doctors, including Margules, to give fraudulent medical opinions that would support the denial of worker’s compensation benefits, and that defendants ignored other medical evidence in denying them benefits. The plaintiffs claimed that the defendants made fraudulent communications amongst themselves and to the plaintiffs by mail and wire in violation of” the racketeering act.

The 6th Circuit Court in October 2008 had reversed the decision of a lower court dismissing the plaintiffs’ RICO claims.

The defendants had argued that WDCA preempts the plaintiff’s RICO claims and the lower court agreed.

The appeals court found that was not the case, however, and determined that the plaintiffs had “sufficiently pleaded a pattern of racketeering activity,” according to court documents.

The plaintiffs also had claimed that the defendants’ actions had “constituted intentional infliction of emotional distress (IIED) under Michigan law,” but the appeals court affirmed the lower court’s decision to dismiss the IIED claims.

With the Supreme Court’s refusal to consider the case it was remanded back to a lower court for trial.


Tuesday, December 8th, 2009








“The Respondent violated (SCR 3.130 8.2(a) ) by publicly implying that the Legislative Ethics Commission did not conduct its review appropriately.”

The Berry letter  stated:


Oct. 5, 2007

Kentucky Legislative Ethics Commission                                                                                                                             22 Mill Creek Park                                                                                                                                                        Frankfort, Ky. 40601

Dear Chairman Troutman and Commission Members:

   As you know, my brother Wendell, and I attempted to attend your meeting on August 14, 2007.  Before commencing the preliminary inquiry relative to the complaint filed against Senator David L. Williams, we were asked to leave along with other members of the public, the media and the complainant, Richard Beliles, on behalf of Common Cause of Kentucky.  The Inquiry was conducted entirely behind closed doors with the exception of Senator Williams who was allowed to be present throughout the preliminary inquiry.  The exclusion of the pubic (sp) and the media was enough to arouse suspicion, but the exclusion of the complainant (except for a brief appearance as a witness) coupled with the inclusion of the alleged violator throughout the proceeding gave cause for some to speculate that the deck was stacked and the Senator would be exonerated. I was not, and am not, willing to go that far, but I do believe that your Order entered July 29, 2007 that exonerated him, was contrary to the undisputed evidence that was presented.

  It is very unlikely that a legislator would ever come before the Commission and confess guilt. it is almost as unlikely that witnesses consisting of legislative staff, lobbyists, or others who have a special interest in the public policy decisions which are influenced by the legislator would take a chance of alienating  by testifying, in his presence, to anything except their high regard for him. Your Order implies that the absence of such testimony warrants the finding that there is no probable cause to believe that there was any wrongdoing, or even the appearance of it, and, therefore, no adjudicatory proceeding would be in order.  I do not agree with your conclusion and I believe that the evidence filed with the complaint, with the other facts you found by the order, clearly indicate that what was going on was unethical and a violation of the statutes which your are charged to enforce.

   I looked first at the letter written by Senator Williams which was an invitation to all of the invitees to participate in a joint venture to raise money to finance the campaigns of Republican candidates for the State Senate.  The letter itself depicts the capitol dome with the senator’s name and high office printed underneath.  Across the capitol dome are the words, “Senate Majority Event”. The letter stresses the importance of Senator Williams in the conduct  of Senate business and the personal importance to him of the invitee’s cooperating in this effort to elect Republican candidates to the Senate.  The purpose of the solicitation is to maintain and grow the Senate Republican majority which is necessary to keep Senator Williams in the position of President and therefore, well positioned to attend to the business of the invitees.   The letter is signed by Senator Williams and underneath his signature the invitees are once again reminded that he is the Senate President.

   The letter, although not an exact copy of senate stationary, is set up so as to appear to be his letterhead and he repeatedly speaks of himself as the Senate President. Anyone aware of the importance of public policy decisions to fund-raisers would be aware also of the extent to which the power and influence of Senator Williams could affect their interests and, therefore, of the importance of having his goodwill.  To ignore the invitation would be risky business for them. All of this is clearly contrary to, or in violation of, or questionable under, the follows:

KRS 6.606 Purpose of Code

The proper operation of democratic government requires that a public official be independent and impartial; that government policy and decisions be made through the established processes of government; that a public official not use public office to obtain private benefits; that a public official avoid action which creates the appearance of using public office to obtain a benefit; and that the public  have confidence in the integrity of its government and public officials.

KRS 6.731 General Standards of conduct; penalties

A legislator, by himself or through others, shall not intentionally:

(1) Use or attempt to use his influence as a member  of the General Assembly in any matter which involves a substantial conflict between his personal interest and his duties in the public interest. Violation of this subsection is a Class A misdemeanor; ……

(3) Use or attempt to use his official position to secure or create privileges, exemptions, advantages, or treatment for himself or others in direct contravention of the public interest at large. Violation of this subsection is a Class A misdemeanor. …..

(5) Use public funds, time, or personnel for partisan political campaign activity, unless the use is:

(a) Authorized by law, or

(b) properly incidental or another activity required or authorized by law, such as elections to constitutional or party offices within the General Assembly. Violation of this subsection is a Class A misdemeanor.

(6) Use of his official legislative stationery, or a facsimile thereof, to solicit a vote or a contribution for his or another person’s campaign for election or reelection to public office, or use the great seal of the Commonwealth on his campaign stationery or campaign literature. For purposes of this subsection, “official legislative stationery” means the stationery used by a legislature on a day-to-day basis for correspondence related to his duties as a member of the General Assembly. Violation of this subsection is ethical misconduct.

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 campaign contributions from a legislative agent. Violation of this provision is ethical misconduct.


1. A member of the General Assembly may not ask or direct a lobbyist to solicit campaign contributions for a political party or a legislative campaign.

    A careful reading of the letter which Senator Williams sent to the invitees leads but to one conclusion, which is that the most powerful member of the Kentucky State Senate, representing himself personally and the Majority Caucus, was putting the arm on people, who have a vital special interest in public policy decisions, for campaign contributions, and that he was doing so in order to maintain the majority and to keep himself in his position as President. If the letter is then read in the context of the above statues, it is just as clear that his conduct violates those statutes.

    This conclusion is reenforced by all of the things that occurred between the time that the letter was written and the luncheon on May 23rd. The material distributed at the luncheon is especially offensive in that it solicits contributions to the senate political caucus, which will finance the campaigns of individual senators. It further recommends that, in addition to the $2,000 per person ticket of admission to the fundraiser, invitees should contribute a minimum of $5,000.  And it further suggests that attendees can achieve much greater benefit, including  seat at the head table with the featured speaker and Senate President David L. Williams, for $50,000.

   In all of these documents, from the letter of invitation to the fact sheet and the benefit sheet, Senator Williams is prominently featured. he was the featured speaker at the event at which the information was given to all guess including the lobbyists.  This episode as a whole constitutes a blatant misuse of power in order to obtain large contributions from lobbyists and others with a big stake in government programs and projects.  It is not clear how the Commission could have justified Senator Williams conduct and dismissed the complaint.  There is no question that he as well as his official position and influence were being used for the benefit and advantage of the senate candidates and himself.

   There were approximately seven grounds cited by you in your order to support your exoneration of Senator Williams. None of these grounds either standing alone or collectively warrant the result. How many complainants could be expected to have firsthand knowledge of violations?  Mr. Beliles did have first-hand knowledge of the documents that clearly set forth the plan and the motive behind it. They were presented to your and admitted as evidence. What value is it to know that an alleged violator made a telephone call verbally requesting an opinion, without all of the facts and asking only one very limited and irrelevant question?  When did the hiring of go-betweens to carry out an illegal plan in order that the planners and organizers “could get away from it” become a justification for anything? Is it further mitigating if the people you hire know little or nothing about the law?  The implications here are obvious, but in the opinion of the Commission, appear to be sufficient to establish nothing less than the best of intentions.  If the lobbyists question the legality of what is being done, you solve the problem by simply instructing them to make their checks payable to the party and not to the caucus. If all else fails, but the Senator was at the time in a hurry, then he is exonerated on the basis of the legal proposition that “haste makes waste”.

   If the law as it stand is inadequate to allow you in this case to find any violation, ethical misconduct, impropriety, or even the appearance of it, then the law needs to be changed and I hope that you would be instrumental in attempting to get that done.

Very truly yours,

(s) John M. Berry Jr.



The Federal Lawsuit contains a letter from the Inquiry Commission to John M. Berry Jr. dated March 16, 2009.  This letter is dated some l7 months after the date of the Berry letter to the Legislative Ethics Commission.  We have not viewed any documents which specifically detail what statements made by Berry in his letter were “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…”(As required by SCR 3.130 8.2(a)… the ethical rule Berry is alleged by the Inquiry Commission to have violated.

In a document dated May 29, 2008 Berry notified the Inquiry Commission that he waived any confidentiality concerning the investigation against him by the Inquiry Commission.  ”(Re: SCR 3.150)… Subsection 1(a) …provides that I can waive confidentiality and that would appear to remove the confidentiality requirement entirely.  I therefore am waiving the confidentiality requirement effective with this letter.”

Plaintiff’s Exhibit 2 – Document 1-3 filed in the Federal Civil Suit states:

INQUIRY COMMISSION                                                                                                                                                   KENTUCKY BAR CENTER                                                                                                                                             514 WEST MAIN STREET                                                                                                                                            FRANKFORT, KENTUCKY 40601-1812

March l6, 2009


CONFIDENTIAL                                                                                                                                                                      John M. Berry Jr.                                                                                                                                                                     l9 N. Main St.,                                                                                                                                                                             P.O. Box 245                                                                                                                                                                                 New Castle, Ky. 40050-0245

    Re:  John  M. Berry Jr. (Complaint of the Inquiry Commission)  KBA File 15773

Dear Mr. Berry:

    The Inquiry Commission has considered the above referenced  Complaint and the materials provided by the Respondent, as well as additional investigative materials.

    The Commission has found that it appears Respondent ‘s conduct  did not adequately comply with the requirements of SCR 3.130 8,2(a).

   On October 5, 2007, the Respondent sent a letter to the Kentucky Legislative Ethics Commission criticizing its treatment of a Complaint filed against Kentucky Senator David L. Williams.

   SCR 3.130 8.2 (a) provides: “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  a candidate for elections or appointment to judicial or legal office.”  The Respondent violated this Rule by publically implying that the Legislative Ethics Commission did not conduct its review appropriately.

   The Inquiry Commission voted to issue this warning letter, in connection with its Order of Dismissal, as provided by SCR 3.185, in lieu of either a Private Admonition or a Charge. This letter is to advise you in the future to conform your conduct to the requirements of the Rules of Professional Conduct.

   Pursuant to SCR 3.185, the issuance of this warning letter does not constitute a record of discipline. The file will be destroyed after one (1) year.

Very truly yours,

(s) Reed N Moore Jr.                                                                                                                                               Chair, Inquiry Commission


cc. Steven R. Romines, Counsel for Respondent.

In another document filed as an exhibit with the Federal lawsuit – Document 1-3- The Inquiry Commission issued an “Order of Dismissal” of the complaint against Berry. that order was dated  March 14, 2009.  That order said “the record relating to this complaint shall be destroyed one year after the date of this order.”



SCR 3.150 Access to disciplinary information


(1) Confidentiality. In a discipline matter, prior to a rendition of a finding of a violation of these Rules by the Trial Commissioner or the Board and the recommendation of the imposition of a public sanction, the proceeding is confidential.


(2)(a) Notwithstanding subsection (1), the pendency, subject matter and status may be disclosed by Bar Counsel if:


i. The Respondent has waived confidentiality;


ii. The proceeding involves public reciprocal discipline;


iii. The disclosure of any information is made for the purpose of conducting an investigation by the Inquiry Commission or the Office of Bar Counsel, or;


iv. A Motion for Temporary Suspension is pending.


(b) After considering the protection of the public, the interests of the Bar, and the interest of the Respondent in maintaining the confidentiality of the proceeding prior to a finding of a violation of the Rules, the pendency, subject matter and status may also be disclosed by Bar Counsel at the discretion of the Chair of the Inquiry Commission, or of the Chair’s lawyer member designee, if:


i. The proceeding is based upon an allegation that the Respondent has been charged with a crime arising from the same nexus of facts; or


ii. The proceeding is based upon a finding by a court in a civil matter that an attorney has committed conduct that may constitute a violation of the Rules of Professional Conduct.


(3) Duty of Participants. All Participants in a proceeding under these Rules shall conduct themselves so as to maintain the confidentiality requirement of this Rule. Nothing in the rule shall prohibit the Respondent from discussing the disciplinary matter with any potential witness or entity in order to respond in a disciplinary proceeding, or to disclose to any tribunal, or to disclose any information for the purpose of conducting a defense. This provision shall not apply to the Complainant or the Respondent after the Inquiry Commission or its Chair has taken action on a Complaint including the issuance of a charge, the issuance of a private admonition, or a dismissal, including those pursuant to SCR 3.160(3).

U.S. Supreme Court hears Tampa case on Miranda rights – Must Police Specifically Tell suspect of right to have attorney present during questioning?

Tuesday, December 8th, 2009


The U.S. Supreme Court on Monday pointedly questioned why police in a Tampa criminal case didn’t explicitly tell a suspect of his right to an attorney during an interrogation.

A majority of justices appeared inclined to give law enforcement more guidance about how to inform a suspect of his Miranda rights to end confusion about what is required before questioning. The ruling, expected next year, is eagerly awaited and likely would affect a number of major cases nationwide, including a death penalty case in Florida.

The Florida vs. Powell case involved whether the Tampa Police Department adequately warned Kevin Dewayne Powell of his rights in August 2004.

Authorities arrested Powell, a felon, on a charge of illegally possessing a firearm that he told police he bought for $150 on the street.

Powell signed a Miranda warning that stated in part: “You have the right to talk to a lawyer before answering any of our questions. If you cannot afford to hire a lawyer, one will be appointed for you without cost and before any questioning. You have the right to use any of these rights at any time you want during this interview.”

The Florida Supreme Court, in its September 2008 ruling, overturned his conviction and 10-year prison sentence because the warning didn’t expressly inform Powell that he could have an attorney present during the questioning, as required by the landmark Miranda vs. Arizona ruling in 1966.

The highest court in the land seemed inclined to agree.

“Aren’t you supposed to tell this person … you have a right to have the lawyer with you during interrogation?” Justice Stephen Breyer said. “I mean, it isn’t as if that was said in passing in Miranda. They wrote eight paragraphs about it. And I just wonder, where does it say in this warning, you have the right to have the lawyer with you during the interrogation?”

Arguing on behalf of Florida, Deputy Attorney General Joe Jacquot said the state’s high court “ignored the totality of the warning.”

“It took the words ‘before answering any of our questions,’ turning that into an exclusive statement to say, ‘only before questioning,’ ” he said. “That’s the kind of parsing, that’s the kind of precise formulation … that this court has rejected.”

Justice Sonya Sotomayor pressed Jacquot on the intent behind alternative wording used by police in Tampa, which was later changed.

“The police here could have chosen to be explicit, but instead they chose to obfuscate a little bit and be less explicit,” she said. “Shouldn’t we assume that that is an intent to deceive or perhaps to confuse?”

“Absolutely not, your honor,” Jacquot answered.

Powell’s lawyer, Deborah Brueckheimer of Bartow, said the Tampa police warning gave her client the impression that “once questioning starts, that he has no right to consult with a lawyer anymore, and it certainly doesn’t tell him that he has the right to the presence of an attorney with him in an interrogation room, where the coercion takes on a highly new meaning.”

Justice Antonin Scalia called her argument “angels dancing on the head of a pin.”

But two other justices cited conflicting court decisions as a reason to look at clarifying what is required.

The court is expected to issue an opinion in the spring.

U.S. Supreme Court rules on emergency aid exception to Fourth Amendment

Monday, December 7th, 2009


 The US Supreme Court on Monday summarily reversed and remanded  a Michigan Court of Appeals decision that found officers violated a defendant’s Fourth Amendment  rights when they entered his home. In a per curiam opinion, the Court relied on its 2006 ruling in Brigham City v. Stuart to conclude that the officers correctly applied the emergency aid exception to the Fourth Amendment:
It was error for the Michigan Court of Appeals to replace that objective inquiry into appearances with its hindsight determination that there was in fact no emergency. It does not meet the needs of law enforcement or the demands of public safety to require officers to walkaway from a situation like the one they encountered here. Only when an apparent threat has become an actual harm can officers rule out innocuous explanations for ominous circumstances. But “[t]he role of a peace officer includes preventing violence and restoring order, not simply rendering first aid to casualties.” It sufficed to invoke the emergency aid exception that it was reasonable to believe that Fisher had hurt himself (albeit nonfatally) and needed treatment that in his rage he was unable to provide, or that Fisher was about to hurt, or had already hurt, someone else. The Michigan Court of Appeals required more than what the Fourth Amendment demands.
Justice John Paul Stevens filed a dissenting opinion, joined by Justice Sonia Sotomayor.

The case arose when officers were called to the home of Jeremy Fisher. Officers found a dented vehicle outside the home and blood on the vehicle and on clothing inside the vehicle. They observed Fisher through a window throwing objects and one of the officers entered the home, at which time Fisher pointed a rifle at the officer. Fisher was charged with assault and possession of a firearm during a felony and sought to suppress the officer’s statement, arguing that the entry was illegal.