Archive for January, 2010

AOC struggles to pay for new courthouses

Sunday, January 31st, 2010

The state court system laid off 47 people last fall, and judicial officials say they’re looking at even more drastic measures in the upcoming budget cycle.

Since 2000, $880 million has been appropriated for new courthouses that are part of a program designed by former Chief Justice Joseph E. Lambert that was aimed at putting a new courthouse in all 120 counties.

Even though most other state agencies face cuts, Gov. Steve Beshear has recommended an extra $50 million from the General Fund for the courts, both to make up for past budget cuts and to pay for new courthouses that will be opening in the next two years.

The state must start paying for the courthouses, or the counties will default on the bonds. So the court system’s budget will have to be cut in other areas.

Justice Alito Breaches Etiquette and Shows Distaste Over Obama’s Criticism of Corporate Ruling re: Campaign Finance

Thursday, January 28th, 2010


WASHINGTON (Jan. 27) — It wasn’t quite “You lie!” but a shaking of the head and a muttered rebuke from Supreme Court Justice Samuel Alito has sent the lip-reading blogosphere into a tizzy after President Barack Obama’s State of the Union address.

The moment came a little more than halfway into Obama’s speech, when the president criticized the high court’s landmark decision last week overturning limits on campaign spending by corporations.

“With all due deference to the separation of powers, the Supreme Court reversed a century of law to open the floodgates for special interests – including foreign corporations – to spend without limit in our elections,” Obama said, before calling on Congress to pass a law in response to the ruling that “helps to right this wrong.”
Alito, appointed to the court by President George W. Bush in 2005, voted with the majority in the decision, and as Obama voiced his criticism, he shook his head repeatedly and appeared to mouth “not true.”

Alito’s reaction was a sharp break from the unwritten rule of Supreme Court etiquette at presidential addresses to Congress. Justices rarely applaud even the most uncontroversial of presidential remarks. None of the other justices in attendance tonight, including Chief Justice John Roberts and Anthony Kennedy, the author of the campaign finance opinion, showed any visible reaction while seated in the court’s usual front row seats at the annual event.
The response by Alito immediately drew hackles from liberal bloggers, who compared it to the moment in Obama’s health care speech to Congress in September when Rep. Joe Wilson of South Carolina shouted “You lie!” at the president.

U.S. Supreme Court Ends Confrontation Clause Challenge – Upholds Forensic Expert Ruling in Melendez-Diaz case.

Tuesday, January 26th, 2010


During oral arguments Jan. 11 in Briscoe v. Virginia, Supreme Court Justice Antonin Scalia spent considerable time defending the precedent at issue, Melendez-Diaz v. Massachusetts, in which he wrote the majority opinion That was the Confrontation Clause decision finding that forensic evidence needed to be presented in person, not by affidavit, so it could be tested in cross-examination.

Melendez-Diaz was decided just last June, so some wondered why the Court would review such a similar case.  On Monday Jan. 25, 2010, the Court decided to leave well enough alone and leave the precedent untouched. The Court sent the Briscoe case back to Virginia courts for reassessment under the Melendez-Diaz case, which it could have done without hearing arguments in the first place.

Analysis of U.S. Supreme Court’s ruling on Campaign Finance in Citizen’s United v. Federal Election Commission:

Monday, January 25th, 2010

Jan 24 2010,

The Supreme Paradox: When the Court Overrides Congress  by Ben W. Heineman, Jr.

The paradox of the United States Supreme Court is that, from one perspective, it is a traditional judicial institution deciding individual cases. But from another perspective, it makes broad value choices in the name of constitutional interpretation; strikes down acts of democratically elected legislatures; and issues rules with impact on our national life as great or greater than Acts of Congress. 


 This paradox is vividly reflected in the Court’s decision in Citizen’s United v. Federal Election Commission which, on First Amendment grounds, invalidated Congressional limits on independent expenditures by corporations and unions in support of candidates (and by implication limits on such expenditures in about half the States). By a 5-4 vote, the Court explicitly overruled two of its own recent cases and blew away years of bi-partisan Congressional effort to address the problem of money in politics. 


 Citizens United is just the latest piece in the historic puzzle of judicial review when the court invokes the broad, majestic phrases of the Constitution–protecting free speech, prohibiting establishment of religion, securing due process, requiring equal protection, banning cruel and unusual punishment—and fills in constitutional content with its own value choices to invalidate actions of other governmental institutions.


As many scholars have written, these choices by individual justices can result from a combination of factors: law, facts, personal history, current personality, ideology, court dynamics and assessments of a decision’s practical impact. One thing is for sure: they are not wholly mandated by abstract principles, crystal clear history and the unambiguous holdings of past cases (though the Court always wants it to appear that way). 


 The Court may have a wide range of alternatives in any particular case—from declining to reach the ultimate merits, to a statutory rather than constitutional disposition, to a very narrow constitutional result tied closely to the facts, to a sweeping constitutional rule. And, depending on the desired result, “conservatives” can be “judicial activists” (as in Citizens United) and “liberals” can be “judicially restrained”, or vice versa—or “conservatives” can use the First Amendment to deregulate restrictions on corporations and unions (as in Citizens United) and liberals can limit the First Amendment’s reach to allow election spending limitations. 


 Present-day nominees to the Court, of course, are now forced in Congressional testimony solemnly to swear that they follow but don’t make the law, a rhetorical trope taken to absurd extremes before the Judiciary Committee by recent circuit judges Roberts, Alito and Sotomayor. But every knowledgeable observer of the Court knows this is not true—that the Supremes, of course, make new constitutional law all the time. 


 The fiction of the confirmation hearing is, of course, reinforced by the symbols of the Court itself to set it apart from the more political executive and congressional branches: the marble temple, the hushed, high-ceilinged court-room, the raised bench, the judicial robes. And, of course, the opinions: heavy in verbiage, precedent and complex argumentation; invoking principle and, at times, avoiding real reasons for decisions; impenetrable to the average citizen despite a powerful and practical impact on our national life akin to actions from the politically accountable executive and legislature. The fictions, and symbols and opinions are all in the service of preserving the “legitimacy” of the Court itself. 


 I mention all this because the opinions in Citizens United—all 190 plus pages of them— would baffle our citizenry even though its impact on their politics is likely to be important (some think extremely important) . In its bold (bald?) value choices, surrounded by a deep breathing judicial opinion, it reflects the supreme paradox of the Court brushing aside legislative choices and rendering a sweeping decision, with confusing signals to the American people. 


 In declaring unconstitutional Congress’ limits on independent expenditures advocating the election or defeat of a candidate by unions and corporations in a brief period (30 or 60 days) before an election, the Court majority (Justices Kennedy, Alito, Scalia, Thomas and the Chief Justice) stated in essence: 


 –Political speech is at the core of the First Amendment.

 –Curbs on such speech can only be sustained by a compelling state interest.

 –Corporations and unions have the same free speech rights as individuals. 

–The Congressional interests— in protecting against corruption, against distortion of the political process and against use of corporate or union funds for political purposes not approved by shareholders or members– were not sufficiently compelling to justify the free speech restriction on corporations and unions. 


 The majority left untouched Congressional prohibitions on direct corporate or union contributions to candidates because, as decided in 1976 in Buckley v. Valeo, such contributions constituted a real threat of quid pro quo corruption. 


 In a lengthy dissent, Justice Stevens (writing for himself and Justices Breyer, Ginsburg and Sotomayor) offers two critiques of the majority position. 


 First, as a procedural matter, the court never should have reached the merits of the case because: Citizens United didn’t raise the wholesale attack in its request for Supreme Court review; this was a facial challenge (no factual record in the judicial proceedings below) which the Court disfavors; there were narrower grounds for decision (and the court should always use such grounds to avoid broad constitutional decisions); and the doctrine of stare decisis (respect for precedent) should prevent the Court from overturning key cases decided in 1990 and 2002. As Justice Stevens wrote, “the only thing that has changed [since those decisions] is the composition of the court.” 


 Second, on the merits, Justice Stevens argues that the Court for over a century has not equated corporations (and the unions) with individuals in the election law context—and has limited free speech rights in many other contexts such as schools, prisons, the military and the civil service. He then argues that the core legislative interests—-anti-corruption and anti-distortion —are compelling. In any event, the majority cannot credibly argue that they are not because Congress developed a record of more than 100,000 pages when it passed the Bipartisan Campaign Reform Act of 2002 (McCain-Feingold) and the Court, in dealing with a facial (not “applied”) challenge, has no judical record and is simply speculating about the facts. (Stevens finds no evidence that this was an “incumbent’s protection” act.) 


 There are three key value choices—not mandated by prior law–in the majority opinion in Citizens United.


 • The court, on its own volition, decided to render a sweeping decision, although nothing required it to do so. For example, the discussion of stare decisis, replete with analysis of various “factors” from prior decisions, is at the end of the day a value choice. Nothing mandated the result, although the majority opinion, of course, strives to make it look like it had no choice. 


 • Similarly, the majority’s sweeping conclusion that a corporation and an individual are the same for purposes of assessing limits on political spending in an election context is also a value choice. Since 1907, when Congress limited corporate contributions to candidates, there has been plenty of law viewing the corporation, not as a “person” in the same sense as an individual, but as a creation of the state with “personhood” as a legal fiction. Who, by the way, is the corporation: the employees, the senior executives, the board of directors, the shareholders, the creditors? Although the Court in a prior case involving a state referendum, had given corporations’ free speech rights, that decision explicitly noted that the opinion did not apply in the “quite different context” of a candidate election. The point is simply that the Court’s conclusion on this pivotal issue in Citizens United was again a broad value choice, which could have been decided either way.


 • Finally, the majority concluded that none of the main arguments to support the Congressional limitation on independent corporate expenditures—anti-corruption, anti-distortion or lack of shareholder approval—constituted the kind of “compelling state interest” that justifies infringement of First Amendment rights, especially in the core area of political speech. Many of the “factual” and “impact” propositions advanced by Majority are, as Justice Stevens rightly points out, not moored to any facts in the record (because there was no record) and are speculative. There were many friend of court briefs in the case, citing studies this way and that. But these studies were not subject to cross-examination (and we should be skeptical of unchallenged findings of social science research). So, again, the Court substituted its value choices about the weight of the arguments in support of the expenditure limitation for that of Congress, showing little deference to Congressional findings. The Court used the fulcrum of the law’s supposed “chilling effect” on speech to leverage its value choices on the lack of compelling interests. But has anyone but the court noted the chilling effects on corporate and union participation in politics from the expenditure and other limitations? 


 The absence of a full record on election laws—and the Court’s inability to have a broad field of view like the Congress— means that the majority decision has left us with two other paradoxes. 


 First, the decision is likely to weaken candidates and parties. There are now two kinds of “independent” expenditures: the newly freed and unlimited “independent” expenditures in support of, or opposition to, candidates by corporations and unions (which cannot be coordinated with the campaigns). There are also the soft-money, so-called 527 organizations which can spend unlimited funds on independent “issue advocacy” (but not candidate advocacy). Only candidates and their campaigns are now subject to limits: they can receive up to $2,400 from individuals and $5,000 from PACs per election (primaries and general elections are different). Unless they find the magic internet fund-raising formula used by the Obama presidential campaign, they can be swamped in an election by both corporate/union and 527 expenditures. 


 Second, our political culture is in serious decline—with huge sums spent on elections, with strident partisanship and with a raucous, 24/7 cacaphony from the web, cable, bloggers and single issue groups. By opening the door to yet more money in campaigns, both at the federal and state level, the Majority demurely offers us the image of enhancing the “free market place of ideas,” when the reality might be closer to augmenting the bedlam in the insane asylum. 


 Citizens United is not a classic bill of rights case where the Court invokes the constitution to protect a minority from an overbearing majority. Corporations and unions have been able to fend for themselves quite well in the political process before this decision (and nothing stopped individual employees of business or members of union from acting as they saw fit). This was somewhat quirky, off to the side dispute which did not cry out to be decided in this broad, sweeping way until the Court , on its own motion, ordered re-argument on the cosmic issues.  Unless one believes that this alleged affront to the First Amendment was their sole reason, we will have to leave it to the commentariat to speculate about, and the historians to reveal, the underlying reasons for the Majority’s position. 


 So, we are left to ponder the ageless paradox of the Supreme Court in substituting its value choices for those of the democratically elected legislature. Such value choices are, of course, also made by liberal majorities. But the paradox is especially consequential here because of the time and effort spent by Congress in trying to find bipartisan remedies to festering problem of money in politics. And it is especially striking because these broad value choices (cloaked of course in a supposedly straightforward application of First Amendment jurisprudence) comes from the supposedly “conservative” wing of the Supreme Court, all of whom are, at many different times, such staunch advocates of judicial restraint.  

Ben W. Heineman, Jr.

Ben W. Heineman, Jr. was GE’s Senior Vice President-General Counsel for GE from 1987-2003, and then Senior Vice President for Law and Public Affairs from 2004 until his retirement at the end of 2005. He is currently Senior Fellow at the Belfer Center for Science and International Affairs at Harvard’s Kennedy School of Government, Distinguished Senior Fellow at Harvard Law School’s Program on the Legal Profession, Senior Fellow at Harvard Law School’s Program on Corporate Governance and Senior Counsel to the law firm of Wilmer Hale. A Rhodes Scholar, editor-in-chief of the Yale Law Journal and law clerk to Supreme Court Justice Potter Stewart.


Wednesday, January 20th, 2010

In a 7-2 vote on Jan. 19th, the U.S. Supreme Court ruled that a criminal defendant’s right to a public trial covers the process of jury selection.  The Justices said in the Georgia case, Preston v. Jordan, that a screening of jurors should be open to the public.

The court said some situation may require the closing of jury selection for national security and public safety.  Scalia and Thomas dissented.

KBA Board recommends disbarment Melbourne Mills- Denies Reinstatement of Lester Burns

Saturday, January 16th, 2010

The board of the Kentucky Bar Association decided Friday that two of the most colorful and controversial figures in Kentucky legal history should not practice law.

The Board of Governors of the Kentucky Bar Association voted 14-1 to permanently disbar Melbourne Mills Jr. of Lexington for his part in a controversial $200 million fen-phen settlement.  Mills was acquitted of all charges in the Federal prosecution in the Fen Phen trial.

The board also unanimously voted to deny Lester Burns Jr.’s request to again practice law. Burns, a onetime gubernatorial candidate and well-known Eastern Kentucky criminal defense lawyer, voluntarily gave up his law license in 1986 after pleading guilty in federal court to defrauding an insurance company of $1.1 million and to transporting stolen goods across state lines.

Sixth Circuit Ct. of Appeals Reverses Kentucky Ten Commandments Decision

Thursday, January 14th, 2010

 A Kentucky county can restore a display that included the Ten Commandments along with other historical documents after a split federal appeals court ruled Thursday that there’s no evidence the county intended to mount a religious display on public grounds.

The 6th U.S. Circuit Court of Appeals, by a 2-1 vote, vacated an injunction barring Grayson County from using the commandments as part of a “Foundations of American Law and Government” display that included the full text of the Mayflower Compact, the full Declaration of Independence and other historical documents with an explanation of their significance.

U.S. District Judge Joseph McKinley barred the display in 2008, saying its primary intent was religious. Two citizens and the American Civil Liberties Union sued over the display.

Appellate Judge David W. McKeague wrote that minutes of the Grayson County Fiscal Court show county officials were interested mainly in having the historical display at the courthouse.

“While there is no doubt that the Fiscal Court members could have been more explicit about their educational goals, we nonetheless find that, taken as a whole, the Foundations Display endorses an educational message rather than a religious one,” McKeague wrote in an opinion joined by U.S. District Judge Karl Forester of Lexington, who heard the case after being designated by the appeals court to assist in the case.

Appellate Judge Karen Nelson Moore dissented, saying the minutes of various Fiscal Court meetings make the intent of the display clear. Moore noted that county officials didn’t discuss the historical significance of the commandments or other documents in the display until after being sued.

“The County’s asserted purpose here – that the Display was posted for educational or historical reasons – is a sham and should be rejected,” Moore wrote. “The predominant purpose at the time the Fiscal Court voted to approve the Display was a religious one.”

The case was filed in 2001, but put on hold while other legal disputes involving public displays of the Ten Commandments were heard in court.

The U.S. Supreme Court in 2005 ruled that displays inside the McCreary and Pulaski county courthouses were unconstitutional while the U.S. 6th District Court of Appeals said a Mercer County Courthouse display that incorporated other historical documents was constitutional.

Since then, Ten Commandments displays and monuments in Alabama, Georgia, Indiana, Maryland, Nebraska, Ohio, Tennessee and West Virginia have been challenged and taken down.

Another case involving the Ten Commandments, out of a dispute in McCreary County, was argued before the appeals court in October. No decision had been rendered in that case as of Thursday.

U.S. Supreme Ct. Overrules 6th Circuit on Federal Habeas Corpus Rule

Tuesday, January 12th, 2010



[JURIST] The US Supreme Court on Tuesday ruled] unanimously in Smith v. Spisak that the US Court of Appeals for the Sixth Circuit contravened the directives of the Antiterrorism and Effective Death Penalty Act (AEDPA) by extending Mills v. Maryland [opinion text] to resolve in a habeas petitioner’s favor questions that were not decided or addressed in Mills.


The Sixth Circuit ruled that the jury instructions in defendant John Spisak, Jr’s trial violated Mills by requiring unanimity in the finding that the aggravating circumstances outweighed the mitigating factors. In reversing the decision below, Justice Stephen Breyer wrote:
The Court of Appeals held the sentencing instructions unconstitutional because, in its view, the instructions, taken together with the forms, “require[d]” juror “unanimity as to the presence of a mitigating factor” – contrary to this Court’s holding in Mills v. Maryland. Since the parties do not dispute that the Ohio courts “adjudicated” this claim, i.e., they considered and rejected it “on the merits,” the law permits a federal court to reach a contrary decision only if the state-court decision “was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.” Unlike the Court of Appeals, we conclude that Spisak’s claim does not satisfy this standard.
Justice John Paul Stevens joined part of the opinion and filed a separate concurrence. Stevens would have found that the Appeals Court “correctly concluded that two errors that occurred during Spisak’s trial violated clearly established federal law,” but agreed with the Court that the errors did not prejudice the defendant.

In 1983, Spisak was convicted of three murders and two attempted murders, and he was sentenced to death. When the Ohio courts denied his appeals, he filed a petition for federal habeas relief. He argued both improper jury instructions and ineffective assistance of counsel claims.

State’s e-Transparency site now includes Judicial Branch expenditures and contracts, salary information

Tuesday, January 12th, 2010


FRANKFORT, Ky. – Gov. Steve Beshear and Chief Justice John D. Minton Jr. today announced that the state’s judicial branch has joined the Governor’s e-Transparency Web site.

Kentucky’s Open Door, online at, has been upgraded to include all Judicial Branch expenditure and contract data.  Also available is information on all constitutional offices, the executive branch, all competitive contracts awarded by the state and state employee salaries.  Open Door also includes the state’s budget.  The Web site is updated twice daily and is maintained by the Finance and Administration Cabinet.

“As our state government faces enormous budget challenges, it is even more important for government to be transparent and accountable, and for citizens to feel confident that their tax dollars are being used in the most efficient and responsible manner,” said Gov. Beshear. “I’m excited that the judicial branch has joined our administration, as well as all of the state’s constitutional officers, to put our checkbooks online for public view in such a comprehensive and user-friendly way.”

“I’m pleased to join the executive branch in providing comprehensive financial information on the Open Door Web site,” Chief Justice Minton said. “This is part of our ongoing effort to increase the court system’s accountability to Kentucky taxpayers.”

The Judicial Branch is comprised of four levels of state courts – the Supreme Court, the Court of Appeals, Circuit Court and District Court. The Administrative Office of the Courts supports the activities of approximately 3,800 Kentucky Court of Justice employees, including the elected justices, judges and circuit court clerks, and executes the Judicial Branch budget.

In the spring of 2008, Gov. Beshear issued an Executive Order establishing the e-Transparency Task Force; a 14-member bipartisan panel charged with providing a more transparent, accountable state government.  On Jan. 1, 2009, Kentucky’s Open Door was launched after a concerted, multi-agency effort, led by officials of the Finance and Administration Cabinet.  In October 2009, the Governor announced a significant upgrade of the site, making it one of the most comprehensive of its kind in the country.

“We are proud that the judicial branch has joined our bipartisan, interagency effort to provide a one-stop venue where citizens can review how their tax dollars are being spent, as well as obtain other vital information about state-funded programs,”  said Finance and Administration Sec. Jonathan Miller, chair of the Governor’s e-Transparency Task Force. “We are proud of the progress we have made, but this site will be ever-evolving and ever-improving; it will be our continuing goal to refine and supplement this invaluable public resource.”

Kentucky’s Open Door welcomes suggestions on ways to improve the site.  Visitors can submit comments online by visiting and clicking on Contact Us.

U.S. Supreme Court revisits Melendez-Diaz ruling re: right of defendant to confront forensic experts – States seek to shift burden to Defendant to call government witness for cross-examination

Tuesday, January 12th, 2010


Washington Post Staff Writer  Tuesday, January 12, 2010

It was just a little more than six months ago that the Supreme Court decided that defendants must have the opportunity to challenge those who prepare forensic reports before they are admitted into evidence. So Justice Antonin Scalia, who wrote that opinion, wanted to know why his colleagues were debating it once again Monday.

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“Why is this case here, except as an opportunity to upset Melendez-Diaz?” Scalia thundered, referring to the opinion the court rendered at the end of its term last June.

That is exactly what 26 states and the District of Columbia want the court to do, saying the ruling imposes a debilitating procedural and financial requirement on prosecutors. There is at least a theoretical possibility that the 5 to 4 decision will not stand. Now-retired Justice David H. Souter was part of the majority, and he has been replaced by Justice Sonia Sotomayor, a former prosecutor the states hope will be more receptive to their arguments.

So Sotomayor, the last to vote when justices meet in their private conferences to discuss cases, was at the forefront of Monday’s arguments. She and Scalia dominated questioning, but Sotomayor gave no indication she was ready to overturn the court’s earlier decision. She seemed more interested in finding a way to implement the decision in a way that helps prosecutors without offending the Constitution’s guarantee that the accused be able to question those who testify against them.

Sotomayor asked Virginia Solicitor General Stephen R. McCullough what kind of rule would allow prosecutors to present the forensic reports without the proceeding becoming a “trial of affidavits.”

The case at hand is in an unusual posture. Two men, Mark A. Briscoe and Sheldon A. Cypress, were indicted on charges of cocaine possession in separate incidents. Each objected to the admission of a state lab report identifying the white substance in their possession as cocaine, because the person who conducted the test was not called to testify.

The Virginia Supreme Court combined their cases and turned down their appeals, saying the men could have called the analysts on their own.

But Scalia said that was not good enough, and read from his own decision in Melendez-Diaz: “The Confrontation Clause imposes a burden on the prosecution to present its witnesses, not on the defendant to bring those adverse witnesses into court.”

Last term’s decision scrambled the court’s normal ideological teams: Scalia was joined by the court’s most conservative member, Justice Clarence Thomas, as well as liberals Souter, John Paul Stevens and Ruth Bader Ginsburg.

Justice Samuel A. Alito Jr. was the toughest questioner for University of Michigan law professor Richard D. Friedman, who represented Briscoe and Cypress. Alito said there was only a “slight difference” between whether the lab analyst was called in the prosecution’s part of the trial or the defendant’s, so long as the accused had a chance to question.

Friedman said placing the responsibility on the defendant would be a “transformation in the Anglo-American trial” and would mean that the analyst’s failure to show at trial would hurt the defendant, not the prosecution. Friedman warned that the principle could be expanded to audiotapes, videotapes or other kinds of witness testimony.

“Let’s just not get beyond the facts of this case,” Alito said. “All that we are dealing with is an analyst’s report relating to the nature of the substance that was tested and, if it’s a controlled substance, the amount. That’s it.”

Alito also disputed Friedman’s contention that the Melendez-Diaz ruling was not imposing an undue burden on prosecutors. Alito pointed to the brief by the states and the District, which called the decision “unworkable.”

“If it is not a burden on these 26 states plus the District of Columbia, why are they bothering to make this argument?” Alito asked. “Just for amusement?”

Arguments about costs did not move the majority justices last term. And Scalia noted that less than two months after the Melendez-Diaz decision, Virginia amended its law so that it “complies completely.”

“So we are pronouncing on the validity of a Virginia statute that is now gone, right?” Scalia asked Leondra R. Kruger, a federal assistant solicitor general who was supporting Virginia.

Told that Virginia was trying to protect convictions that came between the court’s decision and the new law, Scalia replied: “I’m not criticizing Virginia; I’m criticizing us for taking the case.”

The case is Briscoe v. Virginia.

The drama continues in Shelby County. Major win goes to District Judge Donna Dutton who was upheld by Ct. of Appeals.

Friday, January 8th, 2010

On Friday Jan. 8, 2009 the Court of Appeals set aside a writ of prohibition that the County Attorney obtained from the Circuit Judge.  

 The Circuit Judge denied the right of the District Judge  Donna Dutton, to order that the Commonwealth bring a police officer to a pre-trial hearing.  The Circuit Judge had reasoned that something bad could “potentially” occur if the officer was made to testify at the discovery hearing.  

 The Court of Appeals basically said the District Judge had a great deal of discretion to run her own court, Thank You!, and that her order provided adequate protection against any improper discovery.  The Court of Appeals ordered this important case to be published.

 The Court of Appeals sent a message to the Circuit Judge:

 ”We are persuaded that …an unwarranted intrusion into the proper discretion of the district court occurred in this case.”

 ”We are not persuaded that the potential results enumerated by the circuit court and the Commonwealth qualify as great and irreparable harm – much less harm at all.  They are highly speculative and generalized.  Our highest court has made it clear that an injury meriting such an extraordinary remedy must be “shown by specific allegation of facts and acceptable proof of them” as a condition precedent to issuance of a writ.  Parsley v. Knuckles, 346 S.W.2d 1, 3 (Ky. 1961).  In Parsley, the predecessor to our Supreme Court held that “[i]nterference with the trial procedure of another court should result only from certainty and assurance.” 

 ” We are not persuaded that the potential results enumerated by the circuit court and the Commonwealth qualify as great and irreparable harm – much less harm at all. ”

 Although we have not found caselaw directly on point, we note that a recent case from Jefferson County demonstrates the common or customary nature of requiring the presence of the arresting officer under similar circumstances.  Commonwealth v. Gonzalez, 237 S.W.3d 575 (Ky. App. 2007). 

             Additionally, the district court properly acted within the scope of its discretion in issuing its order.  Kentucky Rule[s] of Criminal Procedure (RCr) 7.24(5) gives the trial judge authority to “prescribe such terms and conditions” concerning discovery.  The district court chose to expedite discovery by means of a pretrial conference.  This Court has long held that a writ “is inappropriate to tell a lower court how to act or to interfere with its exercise of discretion.”

 The appellant’s attorney in this case was Alan Zaring of New Castle, Ky.

 Local attorneys had raised an eyebrow over the Circuit Court’s ruling.

Products Liability Suit: Chemicals in Infant car seat caused Permanent Disfigurement of Child

Friday, January 8th, 2010
Excerpted from Cincinnati Enquirer  Jan 8, 2009

The infant car seat that was supposed to protect a baby girl ended up leaving her “permanently disfigured,” a Butler County couple claim in a lawsuit filed in Common Pleas Court.

“She will be scarred forever,” says Dana Luther, a Cincinnati attorney who filed the suit against Graco Children’s Products Inc. and its parent company, Newell Rubbermaid Inc., of Atlanta.

The suit that Luther filed on behalf of Mark and Natalie Stevens of Fairfield alleges their daughter, who was born in 2007, suffered “permanent depigmentation” – large, pure-white patches on her skin – as a result of contact with materials in a Graco Safe Seat.

The whitened areas are located on the girl’s legs, back, arms, head and face, the suit says.

A similar suit was filed last year against Evenflo Inc. A Pennsylvania couple alleged that a car seat caused their child to suffer a severe rash and blisters, and that chemicals used in car seats have been known to irritate skin and could pose other health risks, the Tribune-Democrat of Johnstown, Pa., reported in May.

It’s unknown how many similar cases might exist, Luther said, but she said it’s clear that chemicals present in carseat materials are generating health concerns.

For example, researchers at Philadelphia University found elevated levels of formaldehyde in children’s clothing and brominated resins in children’s car seats.

In the Fairfield case, the child’s dermatologist determined that the child’s skin problems were caused by contact with her car seat, Luther said.

The doctor produced a report about the child’s case, stating: “The Graco line of car seats has been implicated in numerous cases of contact dermatitis (in children),” Luther said. The doctor mentioned several other people “with the same issues” as the Fairfield child, but Luther said she didn’t have details of those instances.

The suit also accuses the company of negligence and violations of product-liability laws.

The suit is seeking damages exceeding $100,000, plus attorneys’ fees and court costs.


AOC SERVICE WHICH PROVIDES CRIMINAL RECORDS CHECK TO CHARGE $15 PER REPORT – Public can obtain criminal records check online, by mail of drive-thru service in Frankfort

Wednesday, January 6th, 2010

FRANKFORT, Ky. – The Administrative Office of the Courts today announced changes to its service that provides criminal background reports. The following changes will be effective Jan. 19, 2010:

•  There will be a standard fee of $15 for all criminal background reports.
•   A new automated program, AOCFastCheck, will allow the public to request and receive reports online.
•   There will be only three ways to request records – online, by drive-thru service in Frankfort and by mail.

The increase from $10 to $15 will be the first fee increase the AOC has implemented since 2003. At $15, the fee is still less than the amount charged by several other states for background reports.

The AOC Records Unit processes approximately 950,000 criminal record reports each year. The reports are produced from data stored in CourtNet, the statewide database used by the Kentucky Court of Justice to collect information from the court case management system in each county. About 60 percent of those reports are provided free to schools and government agencies. Reports to schools and government agencies will not be affected by the fee increase and will continue to be provided free of charge.

In an effort to more quickly fill requests for criminal record reports, the AOC will make AOCFastCheck, a new automated online system, available to anyone who wants to become a registered user. This new service begins Jan. 19.
“AOCFastCheck represents a huge technological leap in our ability to meet the demand for criminal record reports,” said Jason Cloyd, manager of the AOC Division of Records and Statistics. “The limitations of our manual system have made it challenging to respond to the growing volume of record requests in a timely way.”

The AOC first offered AOCFastCheck to Kentucky schools in August 2009 as a way to quickly turn around the thousands of criminal record reports requested annually for school personnel and volunteers. Cloyd said that the test run of AOCFastCheck proved to be a great success and he looks forward to providing this online option to the public.

The AOC hosts AOCFastCheck on a secure server. To establish a free account beginning Jan. 19, individuals can visit and click on Obtain a Criminal Background Report under Helpful Links. Once users have an account, they can submit a request at any time and be notified by e-mail when the criminal record report is available. They log onto the same account to submit requests, track the progress of requests and receive reports. AOCFastCheck users pay online per request using certain credit and debit cards or an electronic check.

For more information, call the AOC Records Unit at 800-928-6381 between 8 a.m. and 4:30 p.m. Monday through Friday.

The AOC is the operational arm of the Kentucky Court of Justice and supports the activities of approximately 3,800 court system employees, including the elected justices, judges and circuit court clerks. The AOC also executes the Judicial Branch budget.

Government Settles Prosecutorial Misconduct Civil CaseWhich Was Pending in U.S. Supreme Court – Pottwattamie County, Iowa pays $12 million to two defendants who were framed by prosecutors

Tuesday, January 5th, 2010

  On Monday Jan. 4, 2010,  the U.S. Supreme Court granted petitioners’ motion to dismiss the writ of certiorari pursuant to Rule 46 in Pottawattamie County v. McGhee, 08–1065, which involved whether prosecutors who try a case are entitled to immunity when sued for allegedly procuring before trial false evidence to frame a criminal defendant. The motion, which petitioners filed December 30, and to which respondents evidently consented yesterday, was precipitated by a settlement in which the County and its insurers reportedly paid plaintiffs Terry Harrington and Curtis McGhee $12 million.   Harrington, who spent nearly 26 years behind bars, will get a little over $7 million, and McGhee (whose case may be marginally weaker because I seem to recall he pleaded guilty again after his first conviction was overturned) just under $5 million. 

The 8th. Circuit Court of Appeals had dismissed the Prosecutorial Misconduct claim, but the U.S. Supreme Court granted certiorari, and appeared friendly to the plaintiffs during oral arguments.  This

While the settlement ends this case, this is not the last we’ve seen of this issue. Any other case which credibly presents the same issue will have an enhanced chance of being granted, because the Court has a demonstrated interest in the issue.                                                                              The facts of Pottawattamie County were particularly sympathetic, which made it more cert-friendly than the run-of-the-mine case; but at this point, I think the Court is interested in the issue and won’t need outrageous facts to grant.

FEDERAL COURT DISMISSES FEDERAL CHARGES AGAINST BLACKWATER GUNMEN DUE TO PROSECUTORS VIOLATION OF IMMUNITY RULE REGARDING COMPELLED STATEMENTS- The “taint team” couldn’t save this prosecution – This marks the fourth recent example in which judges have tossed out cases citing Justice Department abuse.

Monday, January 4th, 2010


The Wall Street Journal   Jan. 4, 2009 

 Another example of prosecutorial misconduct in a political case?

No, not as the left would have it, that Blackwater still exists. The scandal is that the Justice Department’s case against five former security guards for the military contractor unraveled late last week in what appears to be another instance of gross prosecutorial misconduct, as abusive Justice lawyers went after an unsympathetic political target.

The indictments—which were thrown out by D.C. District Judge Ricardo Urbina in a derisive and detailed 90-page opinion—stemmed from a 2007 firefight in Baghdad’s Nisour Square that left 14 Iraqis dead and others wounded. The government contends that five Blackwater guards, who were providing tactical support for the State Department after an IED exploded in the vicinity of a meeting with Iraqi officials, went on an unprovoked killing spree against unarmed civilians. The guards maintain that they came under attack by insurgents and were responding in self-defense to a mortal threat.

Judge Urbina dismissed the charges because prosecutors misused sworn statements the guards were compelled to make to investigators after the shooting, under the threat of job loss. This was routine practice under military contracting rules, though the statements could not be used in criminal prosecutions. Promptly after the Nisour incident these statements were also leaked to the media, which ran with the narrative of modern-day Hessians gone berserk.

“In their zeal to bring charges against the defendants in this case,” Judge Urbina ruled, prosecutors had violated Fifth Amendment protections against self-incrimination by using these compelled statements to formulate their case and ultimately obtain indictments against the guards. The judge calls it “the government’s reckless violation of the defendants’ constitutional rights.”

Because of prior contact with the compelled statements, the Justice Department’s entire criminal division had recused itself from the case, which was handed over to national-security prosecutors and later to Assistant U.S. Attorney for the District of Columbia Kenneth Kohl. The veteran Justice public-integrity lawyer Raymond Hulser was eventually assigned to lead a “taint team” to rebuild the case without using the off-limits statements, and he repeatedly warned the trial team that their evidence was “thoroughly tainted.”

“By all accounts these prophylactic measures fell well short of expectations,” Judge Urbina notes with some understatement. In “direct contravention of the clear directives” of Mr. Hulser, the statements were used to obtain a search warrant against Blackwater, figured into plea discussions, and exposed in testimony to the grand jury, forcing Justice to withdraw the case and present it to a new panel.

In the second round that featured redacted testimony from the first grand jury, prosecutors also excised what Judge Urbina calls “substantial exculpatory evidence.” The judge goes on to say that Justice’s “inconsistent, extraordinary explanations” for its conduct “smack of post hoc rationalization and are simply implausible,” and ultimately “lacking in credibility.”

Certainly the shootings at Nisour are a tragedy that strained U.S. relations with the Iraqi government, though the details seem reminiscent of the 2005 incident at Haditha, which the Washington political class played as another My Lai massacre but in reality was the product of the complex, asymmetrical combat conditions in a war zone. The courts martial against all but one of the Marines at Haditha have been dismissed or collapsed.

In this case, too, one question is whether prosecutors felt they could get away with such abusive behavior because Blackwater was such a politically unpopular defendant. The firm had political ties to Republicans, and Democrats and their media allies had made Blackwater a whipping boy to further undermine public support for the Iraq war. (Blackwater is now renamed Xe Services and no longer contracting in Iraq.)

This marks the fourth recent example in which judges have tossed out cases citing Justice Department abuse involving easy political targets. In the last year it has become clear that the ethics conviction against former Alaska Senator Ted Stevens was likely a miscarriage of justice, with prosecutors covering up evidence and trying to keep a witness from testifying.

There’s also the vendetta against two former executives at Broadcom in the forgotten political uproar over backdating stock options. That case was thrown out last month after a judge ruled that prosecutors had improperly pressured witnesses and leaked information to the press. Earlier this decade, a federal judge tossed out multiple tax evasion cases against former KPMG partners.

Something is rotten in the culture of Justice, leading ambitious government crusaders to think they can get away with flouting due process when the political winds are blowing hot. Congress and the press corps may be too politically implicated to police this prosecutorial malpractice, so it may be up to the judiciary to apply more stringent sanctions.

US Supreme Court Chief Justice Issues Year End Report on Federal Judiciary

Saturday, January 2nd, 2010

US Chief Justice John G. Roberts, Jr. issued an unusually brief year-end report on the federal judiciary Thursday in his capacity as head of the Judicial Conference of the United States [official website], declining to address judiciary needs as done in previous years. On a single page, the 2009 report said the federal courts were “operating soundly” and thanked judges and court employees for their service. The report skirted budgetary requests, reasoning that only essential information should be passed on when the federal government was facing “many difficult issues” and when many citizens were experiencing hardship. In a four-page statistical appendix, however, Roberts noted several significant trends:

  • The total number of cases filed in the Supreme Court decreased from 8,241 filings in the 2007 Term to 7,738 filings in the 2008 Term—a decrease of 6.1%.
  • The number of cases filed in the Court’s in forma pauperis docket decreased from 6,627 filings in the 2007 Term to 6,142 filings in the 2008 Term—a 7.3% decrease.
  • In 2009, filings in the regional courts of appeals declined 6% to 57,740. Filings of criminal appeals, bankruptcy appeals, and original proceedings rose, but reductions occurred in filings of civil appeals and appeals of administrative agency decisions.
  • Civil filings in the U.S. district courts rose 3%, increasing by 9,140 cases to 276,397.
  • Criminal case filings (including transfers) rose 8% to 76,655, and the number of defendants climbed 6% to 97,982, surpassing the previous record for the number of defendants, 92,714, set in 2003. The number of criminal cases reached its highest level since 1932, the year before ratification of the Twenty-first Amendment, which repealed prohibition.
  • Immigration filings climbed to record levels, as cases jumped 21% to 25,804, and the number of defendants rose 19% to 26,961.

Last year, Roberts’ report called for cost-of-living raises for federal judges. In his 2007 report Roberts called for judicial pay raises in accordance with pending legislation. In 2006 Roberts declared that raises were necessary to keep up with private-sector salaries and to maintain the quality and independence of federal judges. Roberts’ first annual report as Chief Justice in 2005 contained similar requests.



 2009 Year-End Report on the Federal Judiciary

Chief Justice Warren Burger began the tradition of a yearly report on the federal judiciary in 1970, in remarks he presented to the American Bar Association. He instituted that practice to discuss the problems that federal courts face in administering justice. In the past few years, I have adhered to the tradition that Chief Justice Burger initiated and have provided my perspective on the most critical needs of the judiciary. Many of those needs remain to be addressed. This year, however, when the political branches are faced with so many difficult issues, and when so many of our fellow citizens have been touched by hardship, the public might welcome a year-end report limited to what is essential: The courts are operating soundly, and the nation’s dedicated federal judges are conscientiously discharging their duties. I am privileged and honored to be in a position to thank the judges and court staff throughout the land for their devoted service to the cause of justice.

Appendix Workload of the Courts

The Supreme Court of the United States

The total number of cases filed in the Supreme Court decreased from 8,241 filings in the 2007 Term to 7,738 filings in the 2008 Term—a decrease of 6.1%. The number of cases filed in the Court’s in forma pauperis docket decreased from 6,627 filings in the 2007 Term to 6,142 filings in the 2008 Term—a 7.3% decrease. The number of cases filed in the Court’s paid docket decreased from 1,614 filings in the 2007 Term to 1,596 filings in the 2008 Term—a 1.1% decrease. During the 2008 Term, 87 cases were argued and 83 were disposed of in 74 signed opinions, compared to 75 cases argued and 72 disposed of in 67 signed opinions in the 2007 Term. One case from the 2008 Term was reargued later that Term.

The Federal Courts of Appeals

In 2009, filings in the regional courts of appeals declined 6% to 57,740. Filings of criminal appeals, bankruptcy appeals, and original proceedings rose, but reductions occurred in filings of civil appeals and appeals of administrative agency decisions. Overall, the decline stemmed mainly from a drop in administrative agency appeals involving the Board of Immigration Appeals.


The Federal District Courts

Civil filings in the U.S. district courts rose 3%, increasing by 9,140 cases to 276,397. Filings of diversity-of-citizenship cases and cases involving federal questions (i.e., actions under the Constitution, laws, or treaties of the United States in which the United States is not a party in the case) grew as the courts received more cases related to asbestos, civil rights, consumer credit, contract actions, and foreclosures. Filings of cases in which the United States was a party fell 2% to 43,144, as filings related to student loans and prisoner petitions declined.

Diversity-of-citizenship filings climbed 10% (up 8,752 cases), primarily as a result of a national increase in personal injury cases related to asbestos. Most of the asbestos filings took place in the Eastern District of Pennsylvania. Federal-question filings rose 1% to 136,041. Filings of cases involving consumer credit, such as those filed under the Fair Credit Reporting Act, increased 53% (up 2,143 cases), fueled in part by the current economic downturn, particularly in the nation’s most populous districts.

Criminal case filings (including transfers) rose 8% to 76,655, and the number of defendants climbed 6% to 97,982, surpassing the previous record for the number of defendants, 92,714, set in 2003. The number of criminal cases reached its highest level since 1932, the year before ratification of the


Twenty-first Amendment, which repealed prohibition. In that year, 92,174 criminal cases were filed.

Increases occurred in cases related to immigration, fraud, marijuana trafficking, and sex offenses. Filings in other offense categories with significant numbers—non-marijuana drugs and firearms-and-explosives— declined. Immigration filings climbed to record levels, as cases jumped 21% to 25,804, and the number of defendants rose 19% to 26,961. This growth resulted mostly from filings addressing either improper reentry by aliens or fraud or misuse of a visa or entry permit. The charge of improper reentry by an alien accounted for 80% of all immigration cases and 77% of all immigration defendants. The vast majority of immigration cases—88%— were filed in the five southwestern border districts.

The Bankruptcy Courts

In 2009, a total of 1,402,816 bankruptcy petitions were filed in the

U.S. courts, an increase of 35% over the 1,042,806 filed in 2008. The 2009 total represents the greatest number of bankruptcy filings since 2005, when many debtors rushed to file petitions before October 17, 2005, the date on which the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (BAPCPA) took effect. In 2009, the number of bankruptcy filings


exceeded 2008 totals in 93 of the 94 districts, and nine districts experienced increases of 60% or more.

Bankruptcy filings rose by 45% under Chapter 7, 68% under Chapter 11, 47% under Chapter 12, and 13% under Chapter 13. Business petitions climbed by 52%, and non-business petitions increased by 34%.

The Federal Probation and Pretrial Services System

On September 30, 2009, the number of persons under post-conviction supervision was 124,183, an increase of nearly 3% over the total one year earlier. Persons serving terms of supervised release after leaving correctional institutions rose more than 4% this year and accounted for 80% of all persons under supervision. Cases opened in the pretrial services system, including pretrial diversion cases, grew by nearly 6% to 105,294.