Archive for September, 2013

THE 2013 DARWIN AWARDS

Wednesday, September 11th, 2013

2013 DARWIN AWARDS

You’ve been waiting for them with bated breath, so without further ado, here are the 2013 Darwin Awards:

Eighth Place

In Detroit, a 41-year-old man got stuck and drowned in two feet of water after squeezing head first through an 18-inch-wide sewer grate to retrieve his car keys.

Seventh Place

A 49-year-old San Francisco stockbroker, who “totally zoned when he ran”, accidentally jogged off a 100-foot high cliff on his daily run.

Sixth Place

While at the beach, Daniel Jones, 21, dug an 8 foot hole for protection from the wind and had been sitting in a beach chair at the bottom, when it collapsed, burying him beneath 5 feet of sand. People on the beach used their hands and shovels trying to get him out but could not reach him. It took rescue workers using heavy equipment almost an hour to free him. Jones was pronounced dead at a hospital.

Fifth Place

Santiago Alvarado, 24, was killed as he fell through the ceiling of a bicycle shop he was burglarizing. Death was caused when the long flashlight he had placed in his mouth to keep his hands free rammed into the base of his skull as he hit the floor.

Fourth Place

Sylvester Briddell, Jr., 26, was killed as he won a bet with friends who said he would not put a revolver loaded with four bullets into his mouth and pull the trigger.

Third Place

After stepping around a marked police patrol car parked at the front door, a man walked into H&J Leather & Firearms intent on robbing the store. The shop was full of customers and a uniformed officer was standing at the counter. Upon seeing the officer, the would-be robber announced a hold-up and fired a few wild shots from a target pistol.

The officer and a clerk promptly returned fire, and several customers also drew their guns and fired. The robber was pronounced dead at the scene by Paramedics. Crime scene investigators located 47 expended cartridge cases in the shop. The subsequent autopsy revealed 23 gunshot wounds. Ballistics identified rounds from 7 different weapons. No one else was hurt.

HONORABLE MENTION

Paul Stiller, 47, and his wife Bonnie were bored just driving around at 2 A.M. so they lit a quarter stick of dynamite to toss out the window to see what would happen. Apparently they failed to notice that the window was closed.

RUNNER UP

Kerry Bingham had been drinking with several friends when one of them said they knew a person who had bungee-jumped from a local bridge in the middle of traffic. The conversation grew more excited, and at least 10 men trooped along the walkway of the bridge at 4:30 AM. Upon arrival at the midpoint of the bridge, they discovered that no one had brought a bungee rope. Bingham, who had continued drinking, volunteered and pointed out that a coil of lineman’s cable lay nearby. They secured one end around Bingham’s leg and then tied the other to the bridge. His fall lasted 40 feet before the cable tightened and tore his foot off at the ankle. He miraculously survived his fall into the icy water and was rescued by two nearby fishermen. Bingham’s foot was never located.

AND THE WINNER IS….

Zookeeper Friedrich Riesfeldt ( Paderborn , Germany ) fed his constipated elephant 22 doses of animal laxative and more than a bushel of berries, figs and prunes before the plugged-up pachyderm finally got relief. Investigators say ill-fated Friedrich, 46, was attempting to give the ailing elephant an olive oil enema when the relieved beast unloaded.

The sheer force of the elephant’s unexpected defecation knocked Mr Riesfeldt to the ground where he struck his head on a rock as the elephant continued to evacuate 200 pounds of dung on top of him. It seems to be just one of those freak accidents that proves… ‘Shit happens’

IT ALWAYS SEEMS IMPORTANT TO THANK THESE PEOPLE FOR REMOVING THEMSELVES FROM THE GENE POOL.

JUSTICE SCALIA FLYS TO ROME

Wednesday, September 11th, 2013

A LAWREADER STRINGER REPORTS THAT SUPREME COURT JUSTICE SCALIA BOARDED A FLIGHT TO ROME YESTERDAY ACCOMPANIED BY HIS WIFE AND TWO BODYGUARDS. OUR STRINGER WAS ON THE FLIGHT. THE ALL SEEING EYE OF LAWREADER IS EVERYWHERE!

ATTORNEY ERIC DETERS SEEKS RELIEF FROM U.S. 6TH. CIRCUIT OVER KBA FAILURE TO ALLOW HIM TO MAKE A RECORD OF HIS ETHICS HEARING

Tuesday, September 10th, 2013

Sept. 10, 2013

The Kentucky Supreme Court has ruled that attorney Eric Deters did not have the right to make a recording of his ethics hearing before the KBA. Deters brief before the 6th. Circuit notes that the Ky. Supreme has stated that it reviews Ethics findings “based on the record”…but they did not allow relief to Deters who asked for the right to pay for a videotape of the hearing out of his own pocket. He argues the KBA denied him this due process right to preserve the record.

The ruling of the Ky. Supreme Court held that the denial of Deters right to have a transcript to use on his appeal to the Ky. Supreme Court was “not prejudicial”.

Deters has been the target of numerous KBA ethics complaints. He has been sanctioned by the Supreme Court on several occasions. He has expressed his concern that the issue which lead to this appeal related to a sanction of 60 days from the practice of law, but after Deters had served his suspension, the KBA then went over the head of the Supreme Court and filed an objection to his reinstatement after he had served the suspension. The Character and Fitness committee that reviews objections to reinstatements took some 56 days to deny the motion of the KBA. This resulted in the Supreme Court having suspended him for 60 days but an additional 56 days was added to the Supreme Court sanction merely by the KBA seeking to add to the sanction by delaying his reinstatement. The Character and Fitness committee denied the motion of the KBA. Deters argues that the Supreme Court sentenced him, and under the procedures allowed by the Supreme Court Rules, the KBA can be vindictive and in effect resentence the attorney as their will.

“The Kentucky Supreme Court held the denial of Deters’ motion to have a court
reporter present to create a record of the de novo hearing before the trier of fact (the
Board of Governors of the Kentucky Bar Association) not prejudical, despite the facts
that (1) there is no stenographic or electronic recording of the proceedings for which the
“Court . . . decides the case de novo itself based on the record developed below,” Opinion
and Order at 13, and yet (2) fundamental principles of due process require notice and
an opportunity to be heard. In re Ruffalo, 390 U.S. 544 (1968); In re Oliver, 333 U.S.
257, 273 (1948);

Question Presented
Whether Kentucky denies fundamental due process to Deters when (1) it refuses
to permit him to have a court reporter to create a record of the de novo hearing before
the Board of Governors in a bar discplinary matter, (2) there is no other stenograhic or
electronic record of that hearing, and yet (3) the Kentucky Supreme Court admits that it
“decides the case de novo itself based on the record developed below…”

THE FOLLOWING IS THE PLEADING FILED BY ATTORNEY DETERS:

No. 11-A-_______

In the Supreme Court of the United States
Eric C. Deters, Petitioner
v.
Kentucky Bar Association, Respondent

Application to Stay Kentucky Supreme Court Decision
Pending Filing of Petition for Writ of Certiorari
to the Supreme Court of the Commonwealth of Kentucky

To the Honorable Elena Kagan
Associate Justice of the United States Supreme Court and
Circuit Justice for the Sixth Circuit
Charles T. Lester, Jr.
Counsel of Record
P.O. Box 75069
Fort Thomas, KY 41075-0069
(513) 685-7300, (859) 838-4294, (859) 781-2406
Fax: (859) 486-6590
Email: cteljr@yahoo.com, cteljr@fuse.net
Counsel for Petitioner
September 9, 2013
Ii

Table of Contents
Table of Authorties……………………………………………………………………………………………….iii
Cases ……………………………………………………………………………………………………………….iii
Statutes and Rules …………………………………………………………………………………………….iii
Appendix Contents………………………………………………………………………………………………. iv
Application to Stay Kentucky Supreme Decision Pending Certiorari………………………….. 1
Question Presented ……………………………………………………………………………………………….2
Parties to the Proceeding Below ……………………………………………………………………………..2
Corporate Disclosure……………………………………………………………………………………………..2
Opinions Below …………………………………………………………………………………………………….2
Jurisdiction…………………………………………………………………………………………………………..2
Constitutions, Statutes, and Rules…………………………………………………………………………..3
Statement of the Case…………………………………………………………………………………………….5
Standards for Granting a Stay………………………………………………………………………………… 7
Reasons to Grant a Stay and Certiorari and to Reverse the Decision Below …………………8
I. A Certiorari Grant and Merits Success Are Likely……………………………………………….8
A. The Decision Below Conflicts With Numerous Precedents of This Court. …………9
B. This Case Presents an Important Federal Question. …………………………………….. 13
II. Deters Has Irreparable Harm……………………………………………………………………….. 14
III. The Balance of Harms and Public Interest Favor Deters. ……………………………….. 15
Conclusion …………………………………………………………………………………………………………. 15
Iii

Table of Authorties
Cases
Armstrong v. Manzo, 380 U.S. 545 (1965) ……………………………………………………………..11
Bell v. Burson, 402 U.S. 535 (1971) ………………………………………………………………………. 14
Dayton Bar Ass’n v. Clinard, 60 Ohio St.3d 59, 573 N.E.2d 45 (1991) ……………………… 12
Deters v. Kentucky Bar Ass’n, 2012-SC-000344-KB, 2012 WL 2362595 (Ky. June 15,
2012) ……………………………………………………………………………………………………………….. 6
Draper v. Washington, 372 U.S. 487 (1963)………………………………………………………….. 10
Eskridge v. Washington State Bd. of Prison Terms & Paroles, 357 U.S. 214 (1958)…… 10
Ex Parte Bradley, 74 U.S. (7 Wall.) 364 (1868) ……………………………………………………….. 9
Ex Parte Burr, 22 U.S. (9 Wheat.) 529 (1824) …………………………………………………………. 9
Ex Parte Garland, 71 U.S. (4 Wall.) 333 (1866) ……………………………………………………….. 9
Griffin v. Illinois, 351 U.S. 12 (1956)……………………………………………………………………… 10
In re Oliver, 333 U.S. 257 (1948)……………………………………………………………………………. 1
In re Roche, 448 U.S. 1312 (1980) …………………………………………………………………………..8
In re Ruffalo, 390 U.S. 544 (1968) ……………………………………………………………. 1, 9, 10, 15
Kentucky Bar Ass’n v. Deters, 360 S.W.3d 224 (Ky. 2012) reinstatement granted, 2012-
SC-000344-KB, 2012 WL 2362595 (Ky. June 15, 2012) …………………………………….. 5, 6
M.L.B. v. S.L.J., 519 U.S. 102 (1996)……………………………………………………………………… 10
Mathews v. Eldridge, 424 U.S. 319 (1976) ………………………………………………………………11
Mayer v. Chicago, 404 U.S. 189 (1971) …………………………………………………………………. 10
Planned Parenthood of Southeastern Pennsylvania v. Casey, 510 U.S. 1309 (1994) ……8
Randall v. Brigham, 74 U.S. (7 Wall.) 523 (1868) ………………………………………………… 1, 9
Rostker v. Goldberg, 448 U.S. 1306 (1980) ……………………………………………………….. 8, 15

Statutes and Rules
28 U.S.C. 1257 ……………………………………………………………………………………………………… 3
iv
28 U.S.C. 2101(f) …………………………………………………………………………………………………..8
Ind. R. Admis. B. & Disc. Att’y Rule 23, § 14 ………………………………………………………….. 13
Ind. R. Admis. B. & Disc. Att’y Rule 23, § 15…………………………………………………………… 13
Ky. Civ. R. 76.44 ………………………………………………………………………………………………..5, 8
Ky. Civ. R. 98 ……………………………………………………………………………………………………….. 7
Ky. SCR 3.300 ………………………………………………………………………………………………….. 3, 5
Ky. SCR 3.350……………………………………………………………………………………………4, 5, 7, 12
Ky. SCR 3.370……………………………………………………………………………………………….. 4, 6, 7
Ky. SCR 3.510(2) ………………………………………………………………………………………………. 4, 6
Ohio Gov. Bar R. V, § 6………………………………………………………………………………………… 13
Ohio Gov. Bar R. V, § 6(J)……………………………………………………………………………………. 14
Tenn. S.Ct. R. 7, Art. XIII § 13.03 …………………………………………………………………………. 14
U.S. Const. amend. XIV, § 1 …………………………………………………………………………………… 3
W. Va. Law. Disciplinary Proc. R. 3.9 ……………………………………………………………………. 15

Appendix Contents
Opinion and Order, May 23, 2013, 2012-SC-000666-KB………………………………………… 16
Order, May 31, 2013 ……………………………………………………………………………………………. 37
Order, August 29, 2013 ……………………………………………………………………………………….. 38
Order, September 5, 2013 ……………………………………………………………………………………. 39
1

Application to Stay Kentucky Supreme Decision Pending Certiorari

To the Honorable Elena Kagan, Associate Justice of the United States and
Circuit Justice for the U.S. Court of Appeals for the Sixth Circuit:

Petitioner Eric C. Deters respectfully moves for an order staying the Kentucky
Supreme Court’s May 29, 2013 opinion and order (which became final on August 29,
2013 with an order denying Deters’ petition for reconsideration)—which affirmed the
findings of the Board of Governors of the Kentucky Bar Association and imposed a sixty
day license suspension—until this Court resolves all matters connected with Deters’
planned petition for a writ of certiorari, including any consideration on the merits. Rules
22, 23.

The Kentucky Supreme Court held the denial of Deters’ motion to have a court
reporter present to create a record of the de novo hearing before the trier of fact (the
Board of Governors of the Kentucky Bar Association) not prejudical, despite the facts
that (1) there is no stenographic or electronic recording of the proceedings for which the
“Court . . . decides the case de novo itself based on the record developed below,” Opinion
and Order at 13, and yet (2) fundamental principles of due process require notice and
an opportunity to be heard. In re Ruffalo, 390 U.S. 544 (1968); In re Oliver, 333 U.S.
257, 273 (1948); Randall v. Brigham, 74 U.S. (7 Wall.) 523, 540 (1868). Immediate
relief is needed to prevent irreparable harm to Deters’ right to have his due process
claims addressed before the question becomes moot because of the running of the
suspension.
Deters asked the Kentucky Supreme Court to stay its decision pending certiorari
consideration and any merits consideration by this Court, but that motion was denied.
September 5, 2013 Order.
2
Question Presented
Whether Kentucky denies fundamental due process to Deters when (1) it refuses
to permit him to have a court reporter to create a record of the de novo hearing before
the Board of Governors in a bar discplinary matter, (2) there is no other stenograhic or
electronic record of that hearing, and yet (3) the Kentucky Supreme Court admits that it
“decides the case de novo itself based on the record developed below.”

Parties to the Proceeding Below
All parties below are listed in the caption. Rule 14.1(b).

Corporate Disclosure
Eric C. Deters has no has a parent corporation and there is no publicly held
corporation owning 10% or more of any stock. Rules 14.1(b), 29.6.

Opinions Below
The Board of Governor’s order and recommendation are unreported. The
Kentucky Supreme Court’s Opinion and Order of May 23, 2013 is currently unreported,
but available at 2013 WL 2285216. The order denying the petition for reconsideration of
August 29, 2013 is unreported, as is the order denying the stay of September 5, 2013.

Jurisdiction
The Opinion and Order below were originally filed on May 23, 2013. A timely
motion for reconsideration was filed, and on May 31, 2013 the Kentucky Supreme Court
entered an order staying the May 23 order until consideration of the petition for
3
reconsideration. On on August 29, 2013 an Order Denying Petition for Reconsideration
was entered. Jurisdiction is invoked under 28 U.S.C. 1257.

Constitutions, Statutes, and Rules
The Fourteenth Amendment provides, in relevant part, that “[n]o State shall . . .
deprive any person of life, liberty, or property, without due process of law . . . .” U.S.
Const. amend. XIV, § 1.

Ky. SCR 3.300 provides, in relevant part:
The Respondent shall have all the rights secured to a party by the Rules of
Civil Procedure and Kentucky Rules of Evidence with respect to the
introduction of evidence. The Respondent shall have the right to compel
the attendance of witnesses and the production of books, papers and
documents or other writings, except those contained in the investigative
file of Bar Counsel, to the hearing or to such depositions as are permitted
under SCR 3.340. The Respondent shall have the right to an oral argument
or to file a brief before the Trial Commissioner. The Respondent shall be
afforded a full opportunity to defend himself/herself by the introduction of
evidence, and to cross-examine witnesses. If the facts in the charge would
give rise to a criminal proceeding, respondent shall not be compelled to
give evidence against himself or herself. If the Respondent is unable to
employ counsel, the Chair, or Chair’s lawyer member designee, upon
written request accompanied by an in forma pauperis affidavit, made
within twenty (20) days after service of the charge, shall appoint counsel
for the Respondent.

Ky. SCR 3.350 provides, in relevant part, “The proceedings before the Trial
Commissioner shall be reported by videotape, where possible, or if not possible, by a
reporter appointed by the Trial Commissioner. If a transcript must be prepared, it shall
be completed within sixty (60) days of the hearing.”
Ky. SCR 3.370 provides, in relevant part:

(5)(a) The Board, after deliberation, and consideration of oral
argument, if any, shall decide, by a roll call vote: . . .
(ii.) To conduct a de novo review, in its discretion. In that event it
shall make findings as to the guilt or innocence on each Count, and the
4
appropriate discipline to be imposed, if any, and take separate votes as to
each. If the Board votes to take de novo review of the case, said review
shall be confined to the evidence presented and the record of the case. The
Board may consider the admissibility of evidence as well as the
appropriate weight of it. The Board shall state, in its written report
required by subsection (8), the difference between its findings and
recommendations and the report of the Trial Commissioner.
. . . .
(7) Within thirty (30) days after the Board’s decision is filed with
the Disciplinary Clerk, Bar Counsel or the Respondent may file with the
Court a Notice for the Court to review the Board’s decision stating reasons
for review, accompanied by a brief, not to exceed thirty (30) pages in
length, supporting his/her position on the merits of the case. The opposing
party may file a brief, not to exceed thirty (30) pages in length, within
thirty (30) days thereafter. No reply brief shall be filed unless by order of
the Court.
(8) If no notice of review is filed by either party, the Court may
notify Bar Counsel and Respondent that it will review the decision. If the
Court so acts, Bar Counsel and Respondent may each file briefs, not to
exceed thirty (30) pages in length, within thirty (30) days, with no right to
file reply briefs unless by order of the Court, whereupon the case shall
stand submitted. Thereafter, the Court shall enter such orders or opinion
as it deems appropriate on the entire record.

Ky. SCR 3.510(2) provides:

If the period of suspension has prevailed for one hundred eighty
(180) days or less, the suspension shall expire by its own terms upon the
filing with the Clerk and Bar Counsel of an affidavit of compliance with the
terms of the suspension, which must include a certification from the CLE
Commission that the Applicant has complied with SCR 3.675. The
Registrar of the Association will make an appropriate entry in the records
of the Association reflecting that the member has been reinstated;
provided, however, that such suspension shall not expire by its own terms
if, not later than ten (10) days preceding the time the suspension would
expire, Bar Counsel files with the Inquiry Commission an opposition to the
termination of suspension wherein Bar Counsel details such information
as may exist to indicate that the member does not, at that time, possess
sufficient professional capabilities and qualifications properly to serve the
public as an active practitioner or is not of good moral character. A copy of
such objection shall be provided to the Character and Fitness Committee,
to the member concerned, and to the Registrar. If such an objection has
been filed by Bar Counsel, and is not withdrawn within thirty (30) days,
the Character and Fitness Committee shall conduct proceedings under
SCR 2.300. In cases where a suspension has prevailed for one hundred
eighty (180) days or less and the reinstatement application is referred to
5
the Character and Fitness Committee, a fee of $1250.00 shall be made
payable to the Kentucky Office of Bar Admissions.
Ky. Civ. R. 76.44 provides, in relevant part:

The taking of an appeal to the Supreme Court of the United States
or the filing in that court of a petition for review on a writ of certiorari does
not affect the finality of an opinion or final order. An order staying
execution or enforcement of an opinion or final order may be entered
upon motion under the following conditions and circumstances and for
the periods designated: . . . (b) When a party desires to make application
for a writ of certiorari, a stay may be granted by any judge of the appellate
court for such specified number of days not exceeding 90, as may
reasonably be required to enable the writ to be obtained, and may be
conditioned upon the giving of adequate security as specified in Title 28,
Section 2101(f), U.S. Code.

Statement of the Case
Eric Deters was admitted to the practice of law in Kentucky on October 10, 1986.
In 2011, hearings were held on nineteen counts of misconduct in his professional
activities, first before a trial commissioner pursuant to Ky. SCR 3.300 and 3.350, and
then before the Board of Governors pursuant to Ky. SCR 3.370. At the Board of
Governor’s hearing on September 16, 2011, Deters had appeared with a court reporter
and videographer, but was denied the use of them on the grounds that he needed to
request permission for such in advance. He did not argue the point with the Board or
subsequently with the Kentucky Supreme Court.

“Following an evidentiary hearing, the trial commissioner issued a report finding
Deters guilty of sixteen of the nineteen counts and recommending that he be suspended
from the practice of law for one hundred eighty-one days. Pursuant to SCR 3.370(6), the
Board of Governors rejected the commissioner’s report and reviewed the files de novo.
The Board now recommends that this Court find Deters guilty of four of the nineteen
counts and suspend him for sixty-one days.” Kentucky Bar Ass’n v. Deters, 360 S.W.3d
6
224, 227 (Ky. 2012) (“Deters 1”) reinstatement granted, 2012-SC-000344-KB, 2012 WL
2362595 (Ky. June 15, 2012). The Court then went on to suspend him from practice for
sixty-one days effective March 2, 2012. Id. at 235-236.
On June 15, 2012 he was reinstated to the practice of law, Deters v. Kentucky Bar
Ass’n, 2012-SC-000344-KB, 2012 WL 2362595 (Ky. June 15, 2012) (“Deters 2”).1 On
August, 13, 2012, mindful of his experience at the hearing in 2011, Deters filed a motion
requesting the presence of a court report and videographer, in advance of the Board of
Governors’ de novo hearing in two additional files against Deters.. This was denied
without comment by the Board.2 On September 15, 2012, the Board of Governors of the
Kentucky Bar Association, pursuant to Ky. SCR 3.370, held a de novo hearing in two
additional files against Deters. Opinion and Order at 8.
The Board recommended a finding of guilty in both files and a total of sixty days
of suspension. Deters filed a brief in the Kentucky Supreme Court objecting on due
process grounds to the failure to have a stenographic or video record of the de novo
hearing before the Board of Governors, as he had requested. The Kentucky Supreme
Court responded to that argument in this manner:

The Court sees no prejudice in this practice as it relates to this
Court’s review of the matter. When this Court undertakes review of a
disciplinary proceeding, whether at the party’s urging under SCR 3.370(7)
or the Court’s own motion under SCR 3.370(8), it is not bound as it would
be in a pure appeal. The Court is not required to defer to the findings of
1 He actually served 112 days. Bar Counsel had filed an objection to his automatic
reinstatement pursuant to Ky. SCR 3.510(2), and therefore he had to go through the
Character and Fitness Committee process. Deters v. Kentucky Bar Ass’n, 2012-SC-
000344-KB, 2012 WL 2362595 (Ky. June 15, 2012)
2 Matters in Kentucky state courts are routinely recorded, not stenographically, but
electronically, by either audio recording devices or by video recording devices. See,
e.g., Ky. Civ. R. 98, Procedures for video recorded court proceedings and appeals.
The bar discipline proceedings before the Trial Commissioner are to be recorded by
videorecorder if possible. Ky. SCR 3.350.
7
fact or conclusions of law of the trial commissioner or the Board. Rather,
in disciplinary proceedings, those entities act as administrative
agents of this Court to produce a record and a recommendation.

Once this Court undertakes review of a case, it “shall enter such
orders or opinion as it deems appropriate on the entire record.” SCR
3.370(8). Thus, the demeanor and actions of the Board and Bar Counsel
are not relevant. This Court instead decides the case de novo itself
based on the record developed below. Any potential unfairness
shown by a Board member or by Bar Counsel is alleviated by this Court’s
independent review of a lawyer’s alleged misconduct.

Opinion and Order at 12-13 [emphasis supplied].3 The court accepted the
recommendations of the Board of Governors, and on May 23, 2013, entered an Opinion
and Order suspending Deters for sixty days. Id. at 20-21.
Deters filed a petition for reconsideration, and simultaneously, a motion for stay
pending the reconsideration and petition for writ of certiorari. On May 31, 2013, the
Kentucky Supreme Court granted the motion for stay pending the reconsideration of its
opinion and order, but denied the motion for stay pending a petition for a writ of
certiorari. May 31, 2013 Order.

On August 29, 2013, the Court issued an Order Denying the Petition for
Reconsideration, August 29, 2013 Order, and thus lifting the stay. Deters again moved
the Kentucky Supreme Court for a stay pending the filing of a petition for a writ of
certiorari, pursuant to Ky. Civ. R. 76.44.

Standards for Granting a Stay
“In any case in which the final judgment or decree of any court is subject to
review by the Supreme Court on writ of certiorari, the execution and enforcement of
3 As the court itself noted, it did its “de novo” review solely on the record before it:
no additional oral argument or evidence was taken, unlike the proceeding before the
Board of Governors, where both were presented.
8
such judgment or decree may be stayed for a reasonable time to enable the party
aggrieved to obtain a writ of certiorari from the Supreme Court.” 28 U.S.C. 2101(f). For a
stay to be granted, the moving party must show “a likelihood of irreparable injury that,
assuming the correctness of the applicants’ position, would result were a stay not issued;
a reasonable probability that the Court will grant certiorari; and a fair prospect that the
applicant will ultimately prevail on the merits.” Planned Parenthood of Southeastern
Pennsylvania v. Casey, 510 U.S. 1309, 1310 (1994). Justice Brennan provided the
following test for stays:

First, . . . a “reasonable probability” that four Justices will consider the
issue sufficiently meritorious to grant certiorari . . . . Second, . . . a fair
prospect that a majority of the Court will conclude that the decision below
was erroneous. . . . Third, . . . that irreparable harm is likely to result from .
. . denial . . . . Fourth, in a close case it may be appropriate to “balance the
equities” . . . .
Rostker v. Goldberg, 448 U.S. 1306, 1308 (1980) (Brennan, Circuit Justice) (citations
omitted) (granting stay pending appeal). This test also governs cases from state courts.
See In re Roche, 448 U.S. 1312 (1980) (Brennan, Circuit Justice) (granting stay of
decision of state court).

Reasons to Grant a Stay and Certiorari and to Reverse the Decision Below
The reasons to grant a stay are also reasons to grant certiorari, and to reverse.

I. A Certiorari Grant and Merits Success Are Likely.
There is more than a “reasonable probability” that four Justices will vote to grant
certiorari and more than a “fair prospect” that Deters will prevail on the merits. Rostker,
448 U.S. at 1308. These outcomes are likely.
9
A. The Decision Below Conflicts With Numerous Precedents of
This Court.
The practice of law has long been recognized as a right that, once acquired, is
entitled to due process protection. Chief Justice Marshall noted in Ex Parte Burr, 22
U.S. (9 Wheat.) 529, 530 (1824) that: “the profession of an attorney is of great
importance to an individual, and the prosperity of his whole life may depend on its
exercise. The right to exercise it ought not to be lightly or capriciously taken from him.”
Justie Field, writing for the Court in Ex Parte Garland, 71 U.S. (4 Wall.) 333 (1866),
reiterated this sentiment:

The attorney and counselor being, by the solemn judicial act of the
court, clothed with his office, does not hold it as a matter of grace and
favor. The right which it confers upon him to appear for suitors, and to
argue causes, is something more than a mere indulgence, revocable at the
pleasure of the court, or at the command of the legislature. It is a right of
which he can only be deprived by the judgment of the court, for moral or
professional delinquency.

Id. at 379. The Court, in Ex Parte Bradley, 74 U.S. (7 Wall.) 364, 375 (1868), also
recognized that the lower court had no power to punish an attorney without notice or an
opportunity to defend. The same term, the Court, discussing attorney discipline in
Randall v. Brigham, 74 U.S. (7 Wall.) 523 (1868), stated “[N]otice should be given to
the attorney of the charges made and opportunity afforded him for explanation and
defence. The manner in which the proceeding shall be conducted, so that it be without
oppression or unfairness, is a matter of judicial regulation.” Due process also requires
notice of and adherence to those regulations.

A century later, the Court again reiterated the due process rights in discplinary
proceedings in In re Ruffalo, 390 U.S. 544 (1968). The Court cited Randall in
determining that fair notice and an opportunity to be heard had been denied Ruffalo,
10
the court concluding, “This absence of fair notice as to the reach of the grievance
procedure and the precise nature of the charges deprived petitioner of procedural due
process.” Id. at 552.

If one is to have an opportunity to be heard, and that decision is reviewed in any
fashion (whether “de novo” on the record, or solely on the record for errors of law or
abuses of discretion), it is a fundamental prerequisite that there be a record of what
transpired, especially before a trier of fact. As the Ruffalo Court pointed out, “These are
adversary proceedings of a quasi-criminal nature.” Id. at 551.
The right to a record of proceedings is assumed in many of the cases, but
expressly prescibed in a number of cases, especially involving deprivation of rights or
liberties.

The principle of [Griffin v. Illinois, 351 U.S. 12 (1956) (plurality opinion)]
is that ‘(d)estitute defendants must be afforded as adequate appellate
review as defendants who have money enough to buy transcripts,’ 351
U.S., at 19, a holding restated in [Eskridge v. Washington State Bd. of
Prison Terms & Paroles, 357 U.S. 214 (1958) (per curiam)] to be ‘that a
State denies a constitutional right guaranteed by the Fourteenth
Amendment if it allows all convicted defendants to have appellate review
except those who cannot afford to pay for the records of their trials,’ 357
U.S., at 216.

Draper v. Washington, 372 U.S. 487, 488 (1963) (reaffirming Griffin). In a case
involving a nonfelony charge, this Court said, “appellant cannot be denied a ‘record of
sufficient completeness’ to permit proper consideration of his claims.” Mayer v.
Chicago, 404 U.S. 189, 198 (1971) (even when the punishment was only a fine). And in
M.L.B. v. S.L.J., 519 U.S. 102 (1996), this Court held that Mississippi could not deny the
petitioner appellate review of the sufficiency of the evidence on which the trial court
based its parental termination decree because of her poverty.
11
In the case at bar, the petitioner was not asking for anything at the
Commonwealth’s expense, but at his own expense, and yet the fundamental right to
have a record of the fact-finding proceedings before the Board of Governors, even at his
own expense, was denied him. Ky. SCR 3.350 requires a record, preferably a video
record, but otherwise a a stenograhic record, before a Trial Commissoner, but does not
specifically state that a record must be made before the Board of Governors when it sits
de novo. Nevertheless, a record of the proceedings is fundamental to the due process
requirement of being heard when the Kentucky Supreme Court does its review. “The
fundamental requirement of due process is the opportunity to be heard ‘at a meaningful
time and in a meaningful manner.’ Armstrong v. Manzo, 380 U.S. 545, 552 (1965).”
Mathews v. Eldridge, 424 U.S. 319, 333 (1976).

Indeed, counsel has not had the opportunity to examine all the bar disciplinary
regulations in all fifty states. However, counsel has been able to review a few of the
surrounding sates, and all require the creation of a record of the proceedings.
Indiana requires a record of the fact-finding proceedings. Ind. R. Admis. B. &
Disc. Att’y Rule 23, at § 14, describing proceedings before the hearing officer in
disciplinary matters, states in relevant part, “(h) The proceedings may be summary in
form and shall be without the intervention of a jury and shall be conducted on the
record.” [emphasis supplied] The following section, § 15, describing review by the
Indiana Supreme Court, states in relevant part,
(b) In the event a party does not concur in a factual finding made by
the hearing officer and asserts error in such finding in the petition for
review, such party shall file with the petition for review a record
of all the evidence before the hearing officer relating to this
factual issue. Within thirty (30) days of the filing of the transcript,
opposing parties may file such additional transcript as deemed necessary
to resolve the factual issue so raised in the petition for review. Any
12
transcript filed must be settled, signed and certified as true and correct by
the hearing officer. The cost of procuring a transcript shall be borne by the
party obtaining it for purposes of seeking review. [emphasis supplied]
Ohio also requires a record at the fact-finding stage. Ohio Gov. Bar R. V, which
deals with disciplinary procedure, particularly § 6, dealing with proceedings of the
Board after filing of the complaint, states in relevant part: “(F) Hearing. Upon
reasonable notice and at a time and location set by the panel chair pursuant to the
hearing procedures and guidelines of the Board, the panel shall hold a formal hearing on
the complaint. Requests for continuances may be granted by the panel chair for good
cause shown. All hearings shall be recorded by a court reporter provided by
the Board and a transcript filed with the Secretary.” [emphasis supplied] In
Dayton Bar Ass’n v. Clinard, 60 Ohio St.3d 59, 573 N.E.2d 45 (1991), the Ohio Supreme
Court remanded a disciplinary proceeding to the panel for further evidentiary
proceedings where it appeared that the record of a disciplinary hearing did not contain
all relevant evidence due to the ineffectiveness of the attorney’s counsel.4
4 There is a hole in the Ohio rules, just like the one in the Kentucky rules. Ohio Gov.
Bar R. V provides: “ (J) Review by Entire Board. After review, the Board may refer
the matter to the hearing panel for further hearing, order a further hearing before
the Board, or proceed on the certified report of the prior proceedings before the
hearing panel. After the final review, the Board may dismiss the complaint or find
that the respondent is guilty of misconduct. If the complaint is dismissed, the
dismissal shall be reported to the Secretary of the Board, who shall notify the same
persons and organizations that would have received notice if the complaint had
been dismissed by the hearing panel.” [emphasis supplied] Although the rule would
seem to permit the same result Kentucky imposed upon Deters, counsel has not
found any Ohio case like this one, and the Dayton Bar case suggests that Ohio
would have afforded Deters the right to a transcript.
13
Tennessee also requires a record. Tenn. S.Ct. R. 7, Art. XIII deals with formal
proceedings before the State Board of Law Examiners. The relevant portions of § 13.03
of that rule, dealing with the hearings, state:

(j) The Administrator shall arrange for the presence of a
court reporter to transcribe any oral hearing. The per diem charge
of such reporter shall be paid by the party requesting the hearing, or, in
the case of a show cause order, by the Board. In its discretion, the
Board may waive the presence of a reporter and use an
electronic or similar recording device. At the direction of the Board,
or at the request of any party, a transcription of the hearing
shall be made, and shall be incorporated in the record, if made.
The party requesting the transcription shall bear the cost thereof. If the
Board elects to transcribe the proceedings, any party shall be provided
copies thereof upon payment to the Board of a reasonable compensatory
charge. [emphasis supplied]
Finally, West Virginia also requires a record. W. Va. Law. Disciplinary Proc. R.
3.9 states simply: “Hearings before a Hearing Panel Subcommittee of the Lawyer
Disciplinary Board shall be recorded by stenographic, mechanical, or electronic means.
Upon request, the lawyer shall be entitled, at the lawyer’s expense, to a copy of a
videotape, audiotape, or transcript of the hearing.”

B. This Case Presents an Important Federal Question.
This is a case of great public importance. Just as our men and women in uniform
protect us from external threats, the legal profession is the protector of our democracies
from within. Dick the Butcher, in Henry VI, part 2, Act 4, Scene 2 says, “The first thing
we do, let’s kill all the lawyers.” Although also intended as a joke in that play, it
illustrates that then, as now, lawyers protect our rights. Just as lawyers protect the
rights of others, so they too should be accorded the same protections, not less, that are
accorded other rights and privileges. This involves the failure of elementary due process
14
principles to be applied to the lawyer discipline process. It involves longstanding issues
concerning the meaning of what process is due. It involves respect for the Constitution,
the rule of law, and decisions of this Court. If Kentucky is allowed to abrogate this
Court’s holdings due process cases in such a willful and transparent fashion, respect for
the Constitution, the rule of law, and this Court will be eroded. More states may try to
carve out exceptions to providing records for hearings affecting property and liberty
interests, based on their own allegedly unique circumstances.
To summarize Part I, the decision below conflicts with this Court’s holdings in
numerous precedents, violates basic requirements oo procedural due process, and raises
important federal questions. Thus, there is more than a “reasonable probability” that
four Justices will vote to grant certiorari and more than a “fair prospect” that the
Corporations will prevail on the merits.

II. Deters Has Irreparable Harm.
Deters has irreparable harm, because the length of the suspension imposed by
Kentucky is only sixty days. Without a stay, the suspension time will have run, and the
violation of Deters’ due process rights, will have become moot. “Once licenses are
issued, as in petitioner’s case, their continued possession may become essential in the
pursuit of a livelihood. Suspension of issued licenses thus involves state action that
adjudicates important interests of the licensees. In such cases the licenses are not to be
taken away without that procedural due process required by the Fourteenth
Amendment.” Bell v. Burson, 402 U.S. 535, 539 (1971) (drivers’ licenses).
15
III. The Balance of Harms and Public Interest Favor Deters.
Justice Brennan included “balanc[ing] the equities” in the stay standards, but
only “in a close case.” Rostker, 448 U.S. at 1308. This is not a close case, but the balance
favors Deters. Attorneys in the Commonwealth are not afforded basic due process rights
that would be afforded, for free, to indigents in other quasi-criminal matters. Cf.
Williams v. Oklahoma City, 395 U.S. 458, 459 (1969) (“convicted for a violation of a city
ordinance, quasi criminal in nature”) with In re Ruffalo at 551 (“These are adversary
proceedings of a quasi-criminal nature.”). Therefore, it is in the public interest to
decisively put an end to this by providing the relief requested herein.

Conclusion
For the foregoing reasons, the requested stay should granted.
Respectfully submitted,
Charles T. Lester, Jr.
Counsel of Record
P.O. Box 75069
Fort Thomas, KY 41075-0069
(513) 685-7300, (859) 838-4294, (859)
781-2406
Fax: (859) 486-6590
Email: cteljr@yahoo.com, cteljr@fuse.net
Counsel for Petitioner

SYMPTOMS OF FEMALE HEART ATTACK IS DIFFERENT THAN A MAN’S SYMPTOMS

Tuesday, September 10th, 2013

Nurse has heart attack and describes what women feel when having one:

NURSE’S HEART ATTACK EXPERIENCE

I am an ER nurse and this is the best description of this event that I have ever heard. Please read, pay attention, and send it on!

FEMALE HEART ATTACKS

I was aware that female heart attacks are different, but this is the best description I’ve ever read.

Women rarely have the same dramatic symptoms that men have … you know, the sudden stabbing pain in the chest, the cold sweat, grabbing the chest & dropping to the floor that we see in movies. Here is the story of one woman’s experience with a heart attack.

I had a heart attack at about 10:30 PM with NO prior exertion, NO prior emotional trauma that one would suspect might have brought it on. I was sitting all snugly & warm on a cold evening, with my purring cat in my lap, reading an interesting story my friend had sent me, and actually thinking, ‘A-A-h, this is the life, all cozy and warm in my soft, cushy Lazy Boy with my feet propped up.

A moment later, I felt that awful sensation of indigestion, when you’ve been in a hurry and grabbed a bite of sandwich and washed it down with a dash of water, and that hurried bite seems to feel like you’ve swallowed a golf ball going down the esophagus in slow motion and it is most uncomfortable. You realize you shouldn’t have gulped it down so fast and needed to chew it more thoroughly and this time drink a glass of water to hasten its progress down to the stomach. This was my initial sensation–the only trouble was that I hadn’t taken a bite of anything since about 5:00 p.m.

After it seemed to subside, the next sensation was like little squeezing motions that seemed to be racing up my SPINE (hind-sight, it was probably my aorta spasms), gaining speed as they continued racing up and under my sternum (breast bone, where one presses rhythmically when administering CPR).

This fascinating process continued on into my throat and branched out into both jaws. ‘AHA!! NOW I stopped puzzling about what was happening — we all have read and/or heard about pain in the jaws being one of the signals of an MI happening, haven’t we? I said aloud to myself and the cat, Dear God, I think I’m having a heart attack!

I lowered the foot rest dumping the cat from my lap, started to take a step and fell on the floor instead. I thought to myself, If this is a heart attack, I shouldn’t be walking into the next room where the phone is or anywhere else…. but, on the other hand, if I don’t, nobody will know that I need help, and if I wait any longer I may not be able to get up in a moment.

I pulled myself up with the arms of the chair, walked slowly into the next room and dialed the Paramedics… I told her I thought I was having a heart attack due to the pressure building under the sternum and radiating into my jaws. I didn’t feel hysterical or afraid, just stating the facts. She said she was sending the Paramedics over immediately, asked if the front door was near to me, and if so, to un-bolt the door and then lie down on the floor where they could see me when they came in.

I unlocked the door and then laid down on the floor as instructed and lost consciousness, as I don’t remember the medics coming in, their examination, lifting me onto a gurney or getting me into their ambulance, or hearing the call they made to St. Jude ER on the way, but I did briefly awaken when we arrived and saw that the radiologist was already there in his surgical blues and cap, helping the medics pull my stretcher out of the ambulance. He was bending over me asking questions (probably something like ‘Have you taken any medications?’) but I couldn’t make my mind interpret what he was saying, or form an answer, and nodded off again, not waking up until the Cardiologist and partner had already threaded the teeny angiogram balloon up my femoral artery into the aorta and into my heart where they installed 2 side by side stints to hold open my right coronary artery.

I know it sounds like all my thinking and actions at home must have taken at least 20-30 minutes before calling the paramedics, but actually it took perhaps 4-5 minutes before the call, and both the fire station and St Jude are only minutes away from my home, and my Cardiologist was already to go to the OR in his scrubs and get going on restarting my heart (which had stopped somewhere between my arrival and the procedure) and installing the stents.
Why have I written all of this to you with so much detail? Because I want all of you who are so important in my life to know what I learned first hand.

1. Be aware that something very different is happening in your body, not the usual men’s symptoms but inexplicable things happening (until my sternum and jaws got into the act). It is said that many more women than men die of their first (and last) MI because they didn’t know they were having one and commonly mistake it as indigestion, take some Maalox or other anti-heartburn preparation and go to bed, hoping they’ll feel better in the morning when they wake up… which doesn’t happen. My female friends, your symptoms might not be exactly like mine, so I advise you to call the Paramedics if ANYTHING is unpleasantly happening that you’ve not felt before. It is better to have a ‘false alarm’ visitation than to risk your life guessing what it might be!

2. Note that I said ‘Call the Paramedics.’ And if you can take an aspirin. Ladies, TIME IS OF THE ESSENCE!

Do NOT try to drive yourself to the ER – you are a hazard to others on the road.

Do NOT have your panicked husband who will be speeding and looking anxiously at what’s happening with you instead of the road.

Do NOT call your doctor — he doesn’t know where you live and if it’s at night you won’t reach him anyway, and if it’s daytime, his assistants (or answering service) will tell you to call the Paramedics. He doesn’t carry the equipment in his car that you need to be saved! The Paramedics do, principally OXYGEN that you need ASAP. Your Dr. will be notified later.

3. Don’t assume it couldn’t be a heart attack because you have a normal cholesterol count. Research has discovered that a cholesterol elevated reading is rarely the cause of an MI (unless it’s unbelievably high and/or accompanied by high blood pressure). MIs are usually caused by long-term stress and inflammation in the body, which dumps all sorts of deadly hormones into your system to sludge things up in there. Pain in the jaw can wake you from a sound sleep. Let’s be careful and be aware. The more we know the better chance we could survive.

A cardiologist says if everyone who gets this mail sends it to 10 people, you can be sure that we’ll save at least one life.

*Please be a true friend and send this article to all your friends (male & female) who you care about!*

SYMPTOMS OF FEMALE HEART ATTACK IS DIFFERENT THAN A MAN’S SYMPTOMS

Nurse has heart attack and describes what women feel when having one:

NURSE’S HEART ATTACK EXPERIENCE

I am an ER nurse and this is the best description of this event that I have ever heard. Please read, pay attention, and send it on!

FEMALE HEART ATTACKS

I was aware that female heart attacks are different, but this is the best description I’ve ever read.

Women rarely have the same dramatic symptoms that men have … you know, the sudden stabbing pain in the chest, the cold sweat, grabbing the chest & dropping to the floor that we see in movies. Here is the story of one woman’s experience with a heart attack.

I had a heart attack at about 10:30 PM with NO prior exertion, NO prior emotional trauma that one would suspect might have brought it on. I was sitting all snugly & warm on a cold evening, with my purring cat in my lap, reading an interesting story my friend had sent me, and actually thinking, ‘A-A-h, this is the life, all cozy and warm in my soft, cushy Lazy Boy with my feet propped up.

A moment later, I felt that awful sensation of indigestion, when you’ve been in a hurry and grabbed a bite of sandwich and washed it down with a dash of water, and that hurried bite seems to feel like you’ve swallowed a golf ball going down the esophagus in slow motion and it is most uncomfortable. You realize you shouldn’t have gulped it down so fast and needed to chew it more thoroughly and this time drink a glass of water to hasten its progress down to the stomach. This was my initial sensation–the only trouble was that I hadn’t taken a bite of anything since about 5:00 p.m.

After it seemed to subside, the next sensation was like little squeezing motions that seemed to be racing up my SPINE (hind-sight, it was probably my aorta spasms), gaining speed as they continued racing up and under my sternum (breast bone, where one presses rhythmically when administering CPR).

This fascinating process continued on into my throat and branched out into both jaws. ‘AHA!! NOW I stopped puzzling about what was happening — we all have read and/or heard about pain in the jaws being one of the signals of an MI happening, haven’t we? I said aloud to myself and the cat, Dear God, I think I’m having a heart attack!

I lowered the foot rest dumping the cat from my lap, started to take a step and fell on the floor instead. I thought to myself, If this is a heart attack, I shouldn’t be walking into the next room where the phone is or anywhere else…. but, on the other hand, if I don’t, nobody will know that I need help, and if I wait any longer I may not be able to get up in a moment.

I pulled myself up with the arms of the chair, walked slowly into the next room and dialed the Paramedics… I told her I thought I was having a heart attack due to the pressure building under the sternum and radiating into my jaws. I didn’t feel hysterical or afraid, just stating the facts. She said she was sending the Paramedics over immediately, asked if the front door was near to me, and if so, to un-bolt the door and then lie down on the floor where they could see me when they came in.

I unlocked the door and then laid down on the floor as instructed and lost consciousness, as I don’t remember the medics coming in, their examination, lifting me onto a gurney or getting me into their ambulance, or hearing the call they made to St. Jude ER on the way, but I did briefly awaken when we arrived and saw that the radiologist was already there in his surgical blues and cap, helping the medics pull my stretcher out of the ambulance. He was bending over me asking questions (probably something like ‘Have you taken any medications?’) but I couldn’t make my mind interpret what he was saying, or form an answer, and nodded off again, not waking up until the Cardiologist and partner had already threaded the teeny angiogram balloon up my femoral artery into the aorta and into my heart where they installed 2 side by side stints to hold open my right coronary artery.

I know it sounds like all my thinking and actions at home must have taken at least 20-30 minutes before calling the paramedics, but actually it took perhaps 4-5 minutes before the call, and both the fire station and St Jude are only minutes away from my home, and my Cardiologist was already to go to the OR in his scrubs and get going on restarting my heart (which had stopped somewhere between my arrival and the procedure) and installing the stents.
Why have I written all of this to you with so much detail? Because I want all of you who are so important in my life to know what I learned first hand.

1. Be aware that something very different is happening in your body, not the usual men’s symptoms but inexplicable things happening (until my sternum and jaws got into the act). It is said that many more women than men die of their first (and last) MI because they didn’t know they were having one and commonly mistake it as indigestion, take some Maalox or other anti-heartburn preparation and go to bed, hoping they’ll feel better in the morning when they wake up… which doesn’t happen. My female friends, your symptoms might not be exactly like mine, so I advise you to call the Paramedics if ANYTHING is unpleasantly happening that you’ve not felt before. It is better to have a ‘false alarm’ visitation than to risk your life guessing what it might be!

2. Note that I said ‘Call the Paramedics.’ And if you can take an aspirin. Ladies, TIME IS OF THE ESSENCE!

Do NOT try to drive yourself to the ER – you are a hazard to others on the road.

Do NOT have your panicked husband who will be speeding and looking anxiously at what’s happening with you instead of the road.

Do NOT call your doctor — he doesn’t know where you live and if it’s at night you won’t reach him anyway, and if it’s daytime, his assistants (or answering service) will tell you to call the Paramedics. He doesn’t carry the equipment in his car that you need to be saved! The Paramedics do, principally OXYGEN that you need ASAP. Your Dr. will be notified later.

3. Don’t assume it couldn’t be a heart attack because you have a normal cholesterol count. Research has discovered that a cholesterol elevated reading is rarely the cause of an MI (unless it’s unbelievably high and/or accompanied by high blood pressure). MIs are usually caused by long-term stress and inflammation in the body, which dumps all sorts of deadly hormones into your system to sludge things up in there. Pain in the jaw can wake you from a sound sleep. Let’s be careful and be aware. The more we know the better chance we could survive.

A cardiologist says if everyone who gets this mail sends it to 10 people, you can be sure that we’ll save at least one life.

*Please be a true friend and send this article to all your friends (male & female) who you care about!*

SYMPTOMS OF FEMALE HEART ATTACK IS DIFFERENT THAN A MAN’S SYMPTOMS

Nurse has heart attack and describes what women feel when having one:

NURSE’S HEART ATTACK EXPERIENCE

I am an ER nurse and this is the best description of this event that I have ever heard. Please read, pay attention, and send it on!

FEMALE HEART ATTACKS

I was aware that female heart attacks are different, but this is the best description I’ve ever read.

Women rarely have the same dramatic symptoms that men have … you know, the sudden stabbing pain in the chest, the cold sweat, grabbing the chest & dropping to the floor that we see in movies. Here is the story of one woman’s experience with a heart attack.

I had a heart attack at about 10:30 PM with NO prior exertion, NO prior emotional trauma that one would suspect might have brought it on. I was sitting all snugly & warm on a cold evening, with my purring cat in my lap, reading an interesting story my friend had sent me, and actually thinking, ‘A-A-h, this is the life, all cozy and warm in my soft, cushy Lazy Boy with my feet propped up.

A moment later, I felt that awful sensation of indigestion, when you’ve been in a hurry and grabbed a bite of sandwich and washed it down with a dash of water, and that hurried bite seems to feel like you’ve swallowed a golf ball going down the esophagus in slow motion and it is most uncomfortable. You realize you shouldn’t have gulped it down so fast and needed to chew it more thoroughly and this time drink a glass of water to hasten its progress down to the stomach. This was my initial sensation–the only trouble was that I hadn’t taken a bite of anything since about 5:00 p.m.

After it seemed to subside, the next sensation was like little squeezing motions that seemed to be racing up my SPINE (hind-sight, it was probably my aorta spasms), gaining speed as they continued racing up and under my sternum (breast bone, where one presses rhythmically when administering CPR).

This fascinating process continued on into my throat and branched out into both jaws. ‘AHA!! NOW I stopped puzzling about what was happening — we all have read and/or heard about pain in the jaws being one of the signals of an MI happening, haven’t we? I said aloud to myself and the cat, Dear God, I think I’m having a heart attack!

I lowered the foot rest dumping the cat from my lap, started to take a step and fell on the floor instead. I thought to myself, If this is a heart attack, I shouldn’t be walking into the next room where the phone is or anywhere else…. but, on the other hand, if I don’t, nobody will know that I need help, and if I wait any longer I may not be able to get up in a moment.

I pulled myself up with the arms of the chair, walked slowly into the next room and dialed the Paramedics… I told her I thought I was having a heart attack due to the pressure building under the sternum and radiating into my jaws. I didn’t feel hysterical or afraid, just stating the facts. She said she was sending the Paramedics over immediately, asked if the front door was near to me, and if so, to un-bolt the door and then lie down on the floor where they could see me when they came in.

I unlocked the door and then laid down on the floor as instructed and lost consciousness, as I don’t remember the medics coming in, their examination, lifting me onto a gurney or getting me into their ambulance, or hearing the call they made to St. Jude ER on the way, but I did briefly awaken when we arrived and saw that the radiologist was already there in his surgical blues and cap, helping the medics pull my stretcher out of the ambulance. He was bending over me asking questions (probably something like ‘Have you taken any medications?’) but I couldn’t make my mind interpret what he was saying, or form an answer, and nodded off again, not waking up until the Cardiologist and partner had already threaded the teeny angiogram balloon up my femoral artery into the aorta and into my heart where they installed 2 side by side stints to hold open my right coronary artery.

I know it sounds like all my thinking and actions at home must have taken at least 20-30 minutes before calling the paramedics, but actually it took perhaps 4-5 minutes before the call, and both the fire station and St Jude are only minutes away from my home, and my Cardiologist was already to go to the OR in his scrubs and get going on restarting my heart (which had stopped somewhere between my arrival and the procedure) and installing the stents.
Why have I written all of this to you with so much detail? Because I want all of you who are so important in my life to know what I learned first hand.

1. Be aware that something very different is happening in your body, not the usual men’s symptoms but inexplicable things happening (until my sternum and jaws got into the act). It is said that many more women than men die of their first (and last) MI because they didn’t know they were having one and commonly mistake it as indigestion, take some Maalox or other anti-heartburn preparation and go to bed, hoping they’ll feel better in the morning when they wake up… which doesn’t happen. My female friends, your symptoms might not be exactly like mine, so I advise you to call the Paramedics if ANYTHING is unpleasantly happening that you’ve not felt before. It is better to have a ‘false alarm’ visitation than to risk your life guessing what it might be!

2. Note that I said ‘Call the Paramedics.’ And if you can take an aspirin. Ladies, TIME IS OF THE ESSENCE!

Do NOT try to drive yourself to the ER – you are a hazard to others on the road.

Do NOT have your panicked husband who will be speeding and looking anxiously at what’s happening with you instead of the road.

Do NOT call your doctor — he doesn’t know where you live and if it’s at night you won’t reach him anyway, and if it’s daytime, his assistants (or answering service) will tell you to call the Paramedics. He doesn’t carry the equipment in his car that you need to be saved! The Paramedics do, principally OXYGEN that you need ASAP. Your Dr. will be notified later.

3. Don’t assume it couldn’t be a heart attack because you have a normal cholesterol count. Research has discovered that a cholesterol elevated reading is rarely the cause of an MI (unless it’s unbelievably high and/or accompanied by high blood pressure). MIs are usually caused by long-term stress and inflammation in the body, which dumps all sorts of deadly hormones into your system to sludge things up in there. Pain in the jaw can wake you from a sound sleep. Let’s be careful and be aware. The more we know the better chance we could survive.

A cardiologist says if everyone who gets this mail sends it to 10 people, you can be sure that we’ll save at least one life.

*Please be a true friend and send this article to all your friends (male & female) who you care about!*

THE FOLLOWING CASE REVEALS COURTS DUTY IN CONSIDERING GRANDPARENT VISITATION

Tuesday, September 10th, 2013

The following synopsis reveals courts duty in considering grandparent visitation
Walker v. Blair, 382 S.W.3d 862 (Ky., 2012) October 25, 2012

The United States Supreme Court in Troxel v. Granville addressed the federal constitutional implications of state statutes that allow courts to grant non-parent visitation with children over parental objections. A majority of that Court recognized that parents have a constitutionally protected liberty interest in rearing their children without government interference. To protect this liberty interest, courts must give appropriate weight in non-parent visitation proceedings to the parents’ decision to deny visitation.
We accepted discretionary review of this case to consider how to interpret Kentucky’s grandparent-visitation statute, Kentucky Revised Statutes (KRS) 405.021(1), consistently with the constitutional principles articulated in Troxel and whether the trial court in this case appropriately interceded to grant the grandmother visitation with the child despite the objection of the child’s mother.
The trial court in the case before us appeared to acknowledge its obligation to afford the mother’s decision some weight. But the trial court, in granting visitation to the grandmother, and the Court of Appeals in affirming the trial court’s grant, relied on pre-Troxel case law that inappropriately placed grandparents on equal footing with parents when determining visitation. So we must reverse the decision of the Court of Appeals and remand the case to the trial court with directions to conduct a new evidentiary hearing and apply the legal standards consistent with this opinion.
King and its progeny are no longer good law, but that is not to say that KRS 405.020(1) is unconstitutional. Rather, as the Court of Appeals did in Scott and Vibbert, we must interpret the statute to comply with the federal constitutional standards set forth in Troxel. We approve of the modified best interest standard established in Vibbert. And we take this opportunity to clarify the proper analysis for the benefit of the bench and bar.
This Court last addressed Kentucky’s grandparent visitation statute twenty years ago in King v. King. In that case, the parents appealed the trial court’s grant of grandparent visitation rights, arguing that the statute violated their liberty interests under the Fourteenth Amendment of the United States Constitution. In analyzing the statute’s constitutionality, the Court extolled the “benefits to be derived from the establishment of a bond between grandparent and grandchild….
The Court found the statute constitutional because “these considerations by the state do not go too far in intruding into the fundamental rights of the parents.” The Court neither gave presumptive weight to a fit parent’s decision to deny visitation nor required grandparents to meet a heightened burden of proof of the child’s best interest. The Court left the best interest analysis to the trial court’s determination based on a preponderance of the evidence standard.
Eight years after King, the United States Supreme Court addressed third-party visitation in Troxel v. Granville. Before the Court was a Washington statute that broadly permitted “ ‘[a]ny person’ to petition a superior court for visitation rights ‘at any time’ and authorized that court to grant such visitation rights whenever ‘visitation may serve the best interest of the child.’ ”The trial court in Troxel granted visitation rights to a child’s grandparents under this statute. On appeal, the Washington Supreme Court held that the statute unconstitutionally interfered with parents’ fundamental right to raise their children. A plurality of the U.S. Supreme Court affirmed the state supreme court’s decision.
A majority of the Court agreed that under the Due Process Clause of the Fourteenth Amendment, parents have a fundamental liberty interest in the care, custody, and control of their children. And a majority concurred that “there is a presumption that fit parents act in the best interests of their children.” The plurality opinion did not define the precise scope of the parental due process right in the grandparent visitation context. Rather, Justice O’Connor’s lead opinion held the Washington statute unconstitutional as applied to the case (1) because it did not require a court to give the parent’s decision a presumption of validity or any special weight and (2) because the mother did not cut off the grandparent visitation entirely.
In Scott v. Scott, a panel of the Kentucky Court of Appeals interpreted KRS 405.021(1) in light of the federal constitutional rights delineated in Troxel. To protect parents’ liberty interests under the Fourteenth Amendment, the panel held that “grandparent visitation may only be granted over the objection of an otherwise fit custodial parent if it is shown by clear and convincing evidence that harm to the child will result from a deprivation of visitation with the grandparent.”
The Court of Appeals, sitting en banc, soon overturned Scott in Vibbert v. Vibbert. The court acknowledged that the rule in Scott properly presumed that a fit parent’s decision is in the child’s best interest. But the court decided that the Scott panel misread Troxel, which did not consider “whether the Due Process Clause requires all nonparental visitation statutes to include a showing of harm or potential harm to the child as a condition precedent to granting visitation.” The full Court of Appeals in Vibbert held that requiring grandparents to show harm to the child was an unnecessarily strict and unworkable standard because it allowed “only one avenue for grandparents to challenge” the parent’s decision.
So the Vibbert court established a modified best interest standard for analyzing the best interest of the child under KRS 405.021(1). The court required grandparents to prove by clear and convincing evidence that the requested visitation is in the best interest of the child. In lieu of the harm standard established in Scott, the modified best interest standard requires trial courts to consider a broad array of factors in determining whether the visitation is in the child’s best interest, including but not limited to: the nature and stability of the relationship between the child and the grandparent seeking visitation; the amount of time spent together; the potential detriments and benefits to the child from granting visitation; the effect granting visitation would have on the child’s relationship with the parents; the physical and emotional health of all the adults involved, parents and grandparents alike; the stability of the child’s living and schooling arrangements; [and] the wishes and preferences of the child.
This Court has not addressed grandparent visitation rights under KRS 405.021(1) since King v. King. So the Vibbert modified best interest analysis established by the Court of Appeals has remained the standard for determining grandparent visitation petitions under KRS 405.021(1). But some confusion lingers in the lower courts as to whether King remains good law in light of Troxel. In the case at hand, Walker complains that the trial court supported its decision to grant visitation to Blair with Dotson v. Rowe, which quoted King approvingly. The Court of Appeals rejected Walker’s argument, holding that later cases further developed Dotson (and, thus, King ) but did not overturn the case. We disagree with the Court of Appeals on this issue.
B. Applying KRS 405.021(1) and the Modified Best Interest Standard.
When considering a petition for grandparent visitation, the court must presume that a fit parent is making decisions that are in the child’s best interest. “The Due Process Clause does not permit a state to infringe on the fundamental right of parents to make child rearing decisions simply because a state judge believes a ‘better’ decision could be made.” So long as a parent is fit, “there will normally be no reason for the state to inject itself into the private realm of the family to further question the ability of that parent to make the best decisions concerning the rearing of that parent’s children.” So a fit parent’s wishes are not just a factor to consider in determining what is in the child’s best interest. The constitutional presumption that a fit parent acts in the child’s best interest is the starting point for a trial court’s analysis under KRS 405.021(1).
The grandparent petitioning for visitation must rebut this presumption with clear and convincing evidence that visitation with the grandparent is in the child’s best interest. In other words, the grandparent must show that the fit parent is clearly mistaken in the belief that grandparent visitation is not in the child’s best interest. If the grandparent fails to present such evidence to the court, then parental opposition alone is sufficient to deny the grandparent visitation.

CHEMICALS ALLEGEDLY USED IN SYRIA ARE THE TYPE STORED BY THE U.S. IN KENTUCKY

Tuesday, September 10th, 2013

At Blue Grass, the weapons are stored in the Chemical Limited Area, a 250-acre site of the 15,000-acre depot. Fences surrounding the area are topped with coiled razor wire, and signs warn intruders that “Use of Deadly Force is Authorized.”

The weapons are cradled in wooden pallets and stacked like bottles of wine in 44 dirt-covered concrete bunkers or “igloos.”

Blue Grass is the last site in the United States to continue storing sarin and VX; together, they comprise 433 tons of chemicals weapons stored in Madison County. The remaining 90 tons are mustard or blister agent.

It’s commonly reported that Blue Grass has 523 tons of chemical weapons. To be more accurate, that’s the tonnage of the sarin, VX and mustard chemicals alone.

“In other words, if you drained all the agent out of all the weapons, and put it in a big container and put it on a scale, that’s what it would weigh,” minus the explosive components, metal parts, shipping tubes or packaging materials, Williams said.

Read more here: http://www.miamiherald.com/2013/09/09/3616515_p2/chemicals-allegedly-used-in-syria.html#storylink=cpy

http://www.miamiherald.com/2013/09/09/3616515/chemicals-allegedly-used-in-syria.html

Ninth Circuit Reverses Federal Judge Who Ruled That False Statement Of Prosecutor In Closing Argument Was Harmless

Tuesday, September 10th, 2013

Published 1, September 9, 2013 Bizarre , Constitutional Law , Criminal

The Ninth Circuit ruled last week that La Carl Mertez Dow deserves a new trial in reversing a ruling by U.S. District Court Judge Phyllis Hamilton (left) in Oakland, California that it was harmless for a prosecutor to give false information to a jury that Dow was trying to hide a scar in a lineup. The fact that this case had to go to the federal court of appeals to be overturned is a chilling reminder of how our criminal justice system has been warped by the harmless error standard. Courts routinely find constitutional violations in federal cases only to dismiss them as harmless by saying that the defendant would likely have been convicted anyway. The case isDow v. Virga, 2013 U.S. App. LEXIS 18468.
Dow was being tried for second-degree robbery in a case that turns on eye witness testimony by Felix Sablad, an employee at the store. Sablad picked out Dow in a by Shopping Sidekick” id=”_GPLITA_3″ href=”http://jonathanturley.org/2013/09/09/ninth-circuit-reverses-federal-judge-who-ruled-that-false-statement-of-prosecutor-in-closing-argument-was-harmless/#” in_rurl=”http://i.tracksrv.com/click?v=VVM6MjI1MzQ6MTg6cGhvdG8gZGlzcGxheTozY2RkZDc1ZDU0NDJjNmE5MDRlNzZhOGE3YWQzYmFmMjp6LTEyNjktMTc3Mjk5OmpvbmF0aGFudHVybGV5Lm9yZzowOjA6MTM3ODc4NDc5Nzg4Ng” style=”padding: 0px; margin: 0px; color: rgb(187, 68, 17);”photo display and later in a lineup as the man who robbed the Olympian Gas Station in Daly City, California. However, there was little additional evidence and the first case ended in a hung jury.
The prosecutor seemed unwilling to take a risk of a hung jury on the second trial. At trial, by Shopping Sidekick” id=”_GPLITA_0″ href=”http://jonathanturley.org/2013/09/09/ninth-circuit-reverses-federal-judge-who-ruled-that-false-statement-of-prosecutor-in-closing-argument-was-harmless/#” in_rurl=”http://i.tracksrv.com/click?v=VVM6NDI0MjM6MTg6ZGV0ZWN0aXZlOjE5MTYzZWVlYzUyZDJkNjk5MjVjMzY2MmViOThlMmY3OnotMTI2OS0xNzcyOTk6am9uYXRoYW50dXJsZXkub3JnOjU0MjU4OmFjMDZhYzQ3ZjdiODQ2ODE2YTAzMjFhMmQ4NjU5ZWIyOjEzNzg3ODQ3OTc4ODY” style=”padding: 0px; margin: 0px; color: rgb(187, 68, 17);”Detective Oglesby testified falsely that Dow (rather than his attorney) made the request that each of the participants in a lineup wear a bandage under his right eye where he had a scar. It would have immediately identified Dow since Sablad said the man had a scar. However, the obvious request was made by Dow’s attorney. The state appellate court established that the prosecutor knew the testimony was false:
We find that misconduct occurred. Although by Shopping Sidekick” id=”_GPLITA_1″ href=”http://jonathanturley.org/2013/09/09/ninth-circuit-reverses-federal-judge-who-ruled-that-false-statement-of-prosecutor-in-closing-argument-was-harmless/#” in_rurl=”http://i.tracksrv.com/click?v=VVM6NDI0MjM6MTg6ZGV0ZWN0aXZlOjE5MTYzZWVlYzUyZDJkNjk5MjVjMzY2MmViOThlMmY3OnotMTI2OS0xNzcyOTk6am9uYXRoYW50dXJsZXkub3JnOjU0MjU4OmFjMDZhYzQ3ZjdiODQ2ODE2YTAzMjFhMmQ4NjU5ZWIyOjEzNzg3ODQ3OTc4ODY” style=”padding: 0px; margin: 0px; color: rgb(187, 68, 17);”Detective Oglesby testified that defendant made the request to have “the band-aid placed beneath all the participants’ right eyes,” the prosecutor was aware that representation of the evidence was erroneous. More importantly, by asserting that defendant was attempting to “hide” his scar, the prosecutor was mischaracterizing the evidence.
That meant that the prosecutor not only elicited false testimony but knowingly used false testimony. Yet, there is no evidence that the prosecutor was sanctioned or disciplined for the misconduct. There were objections made to the false testimony elicited by the prosecutor at the time of her closing argument. Both the prosecutor and the trial judge seem entirely disinterested in the gross unfairness of the argument:
Second, the prosecutor exploited her knowing presentation of false evidence by arguing that Dow had requested the placement of the band-aids in order to hide his scar, thus indicating consciousness of guilt. Defense counsel objected to this line of argument, but was overruled. The exchange during the prosecutor’s closing remarks in rebuttal was as follows:
[PROSECUTOR]: . . . . But who knows the defendant’s face better than anyone else in this courtroom? The defendant. If there is no noticeable scar on his face, why did he demand that —
[DEFENSE COUNSEL]: Excuse me, I’m sorry.
Objection. There’s no evidence as to whose initiative it was that band-aids were placed on the faces.
THE COURT: Overruled. There was such evidence.
[THE PROSECUTOR]:
Detective Oglesby testified, why did he ask that a band-aid be placed [*12] under his right eye about the exact same location where you can see, in the pictures that Detective Cisneros took, what looks to be a scar. What was he trying to hide if there’s nothing.
. . .
[THE PROSECUTOR]: . . . The defendant’s actions speak for themselves. He knows what’s on his face, and he knows what he was trying to hide when he had that band-aid placed under his right eye.
[DEFENSE COUNSEL]: Objection. I need to phrase an objection. This is outside the scope of evidence. The implication that is being made —
THE COURT: It simply is not outside the scope of the evidence. Of that I am sure. But once again, the jury, if there’s any question in the jury’s mind about what the testimony was on that point, you can have it re-read.
[DEFENSE COUNSEL]: I also object to the implication that this somehow represents a consciousness of guilt when, in fact, the very instructions that are given with respect to how to conduct these things say you should try to obstruct a scar.
THE COURT: The objection is overruled. Go ahead. This is just argument based on the evidence.
[THE PROSECUTOR]: Thank you, Your Honor. . . . The pictures at the live lineup, sure, they show the mouths of these people closed.
And you don’t know for sure what happened before or what happened after. But I suggest this to you. A person who is careful enough to have concealed a distinguishing mark on his face, do you think that that person would be showing a victim, a potential witness in this case, a prominent gap between his two front teeth.
The Ninth Circuit noted that this argument was made in rebuttal when the defense could not respond and further noted that the case was already a weak one (magnifying the effect of the violation). It is otherworldly that Hamilton and the state judges did not see this argument as hugely prejudicial to the defendant. It is equally alarming to see the lack of any real consequences for the prosecutor or, for that matter, the trial judge in allowing such an abuse to be occur.
Hamilton’s decision largely reproduces the habeas denial of the state court of appeals and concludes conclusorily that she viewed it as “unlikely that the false evidence and the prosecutor’s improper closing argument carried any weight with the jury. The court concludes that there was no reasonable likelihood that the false evidence affected the jury’s judgment.” So, having a prosecutor state that the defendant knew that the felon had a scar and tried to hide it from the victim would not “carry any weight with the jury”? The result is that Hamilton agreed to allow prosecutor to elicit damaging false testimony and then use it to convict a man. That was something that a three judge appellate panel was unwilling to do.
The Ninth Circuit ruled:
Here, it is reasonably likely that the false [*24] testimony and the prosecutor’s arguments based on that testimony had a material effect on the outcome of the jury’s deliberations. The case was a weak one that hinged almost entirely on Sablad’s inconsistent eyewitness testimony. The prosecutor argued on the basis of the evidence admitted in violation of Napue that Dow had acted in a manner consistent with a consciousness of guilt. This argument bolstered the prosecution’s case that Dow was guilty by interjecting a new reason for the jury to convict him. The jury may well have concluded that the questionable identification was validated by Dow’s supposed self-incriminating act.
What is astonishing is that Hamilton was a Clinton appointee who previously worked as a public defender (a relatively rare former PD on the federal bench which is populated by a disproportionate number of former prosecutors). She is a law graduate of Santa Clara University School of Law, J.D., 1976.
There is no reference to the name of the prosecutor who first elicited false testimony and then fought to use it in closing argument. I could find no bar referral record of such a case even though defense counsel would likely be pulled before a bar for soliciting such testimony. Presumably she was with the San Mateo District Attorney’s office but there is no direct reference in the lower court decisions. This gives the prosecutor and the office anonymity in a major violation that led to the need for a reversal and new trial.

Blood Spatter Evidence Not an Exact Science

Saturday, September 7th, 2013

By Lisa Hurt Kozarovich
BOONVILLE — With at least a half-dozen blood experts testifying in David Camm’s murder retrial — split on whether evidence indicates his guilt or innocence — it will be up to jurors to decide if they believe analyzing blood stain patterns is science or mere opinion.

Actually, the field of blood stain pattern analysis is probably somewhere in between, said Rod Englert, an expert witness for the prosecution who’s consulted and testified about

blood patterns in more than 375 cases around the country.

Blood stain pattern analysis is documented as far back as a 16th century trial in London, but it wasn’t until the 1950s that it was promoted as a scientific field in the United States. The first time most people heard about blood stain pattern analysis was during the 1956 high-profile trial of Ohio physician Sam Sheppard, accused of murdering his wife.

But some still consider it “junk science,” noting that experiments using items like kitchen sponges and stage blood can’t accurately replicate a crime scene. Camm’s defense team has frequently pointed out that there is no certification process or educational requirements for someone to declare themselves a blood stain pattern analyst.

Camm is on trial for a second time for the Sept. 28, 2000, shooting deaths of his wife Kim, 36, and children, Brad, 7, and Jill, 5. The family was gunned down in the garage of their Georgetown home. Camm was arrested 70 hours later, largely based on Englert’s opinion that there was high-velocity blood spatter on Camm’s shirt proving he was within 4 feet of the shootings.

His first conviction was overturned in 2004.

In a 1991 Idaho case questioning the validity of the blood stain pattern analysis, the state appeals court found, “Many jurisdictions have held that blood spatter analysis is reliable because it is clearly a well–recognized discipline, based upon the laws of physics, which undoubtedly assist[s] the jurors in understanding what occurred.”

Two years later the Supreme Court of Minnesota stated that “the results of blood splatter analysis are generally accepted in the scientific as well as the judicial community” noting that because the techniques are based on “the well-settled sciences of chemistry and physics, the reliability of the technique may be appropriate for judicial notice.”

The case against Camm is largely based on blood evidence, and some jurors in his first trial have said they convicted him on blood evidence, so it’s no surprise that the defense wants to project the idea that blood-stain pattern analysis is nothing more than one person’s interpretation. “It’s not DNA, it’s not fingerprints. It’s someone’s opinion of the evidence,” defense attorney Stacy Uliana said.

But when the nation’s top experts in the field all have the same opinion — most importantly that high-velocity blood spatter on Camm’s shirt, shorts, sock and shoe proves he had to be within 4 feet of his family when they were shot — it’s “significant,” said Floyd County Prosecutor Keith Henderson.

In addition to testimony last week from Englert and nationally-renowned blood spatter expert Tom Bevel, the state will also call State Police Sgt. Dean Marks, to testify that Camm was at the murder scene at the time of the shootings.

Marks, a blood spatter analyst for the State Police crime lab, testified previously that tiny bloodstains on Camm’s shirt are consistent with blood flying backward, toward the shooter, with an extreme amount of force and landing on the clothes. The blood spatter experts said they believe it happened when he leaned in the door of his Ford Bronco and shot his daughter, who was seatbelted in the back seat.

Of course, the defense team plans to call their own blood spatter experts expected to testify that the blood was transferred to and smeared on Camm’s clothing and shoe when he grabbed his son out of the back of the vehicle and laid him down on the garage floor to perform CPR.

The defense team says they’ve been anxious for Englert to take the stand and show the jury that while he may be “smooth” he’s not a scientist.

When Katharine “Kitty” Liell began her cross-examination of Englert late Friday, she said, “You told the jury the evidence doesn’t lie, but how some people interpret events can be different… some people lie … some are mistaken.”

“Absolutely,” said Englert, who was unflappable on the witness stand. When Liell attacked his understanding of sciences, the self-deprecating Englert admitted he had very limited knowledge of hard sciences, like chemistry and trigonometry, saying it wasn’t necessary for what he does in crime scene reconstruction.

Liell appeared flabbergasted that Englert didn’t think understanding things like the chemical makeup of blood and how physics impacts the flight of blood and therefore the pattern it would form wouldn’t be important for him to understand.

After all, according to many definitions of blood stain pattern analysis, scientific principles must be applied to get proper results.

Virginia’s state court of appeals wrote in a 2003 opinion on the validity of the field, “We note that many of the specific physical elements of blood spatter analysis are capable of being tested using the laws of physics and chemistry, and by employing principles of gravity, inertia, and viscosity.

As Liell repeatedly questioned Englert about such principles, he replied “I don’t need to know that for what I do.” He countered, though, that while he didn’t need that knowledge, he frequently consulted other resources and experts in those specific fields to assist.

Englert is somewhat of a celebrity expert and has been involved in several high-profile murder cases, including those of O.J. Simpson, actors Robert Blake and Bob Crane, and Sarah Johnson, a 16-year-old Idaho girl convicted of brutally stabbing her parents to death. He’s not new to New Albany either.

Former prosecutor Stan Faith called on Englert back in 1992 to investigate another local murder — that of Eric Humbert, whose body was never found. Nonetheless, with the help of Englert’s testimony about Humbert’s blood-stained vehicle, the jury only took 35 minutes to convict his best friend, Jonathan Whitesides.

All that tells jurors, Liell says, is that Englert is very experienced at performing for TV cameras and juries. She questioned if he’s as respected in his field as the prosecutors contend.

“He’s called a ‘liar for hire’ for a reason,” Liell said, pointing out the enormous rates experts in the field get paid. Englert reportedly charges about $350 an hour.

The father of blood stain pattern analysis, Herbert MacDonnell, who researched the field for the Department of Justice in the 1960s and ’70s and soon began teaching it to law enforcement personnel, is reportedly the expert who dubbed Englert a “liar for hire” in another case.

Henderson dismisses the attacks on the experts, saying, “It’s a defense strategy. They’ve attacked every witness we’ve had. The jury is smart and they can see through that.”

“The defense is trying to pick apart every little thing, but we’re providing the jury with an overall look — the holistic approach we talk about. What the jury will see is the evidence as a whole — the high-velocity blood spatters on his clothing and shoe, the (human) tissue embedded in his shirt, the brass shavings all over his clothes, the gunshot residue. And the jury is hearing that evidence from some of the top people in the field.”

Prosecutors Failure to Deliver Exculpatory Evidence in Murder Trial Warrants New Trial

Saturday, September 7th, 2013

By M. Alex Johnson, Staff Writer, NBC News
Debra Milke, the Arizona woman who’s spent 24 years on death row in connection with the shooting death of her 4-year-old son in 1989, walked out of jail Friday awaiting a retrial after a judge said there was insufficient evidence linking her to the killing.
The 9th U.S. Circuit Court of Appeals tossed out Milke’s 1990 conviction and death sentence in March, finding that prosecutors failed to turn over evidence of extensive misconduct by the lead Phoenix police detective in the case.
Milke, 49, left the Maricopa County jail after posting bail of which was paid by her terminally ill mother, who lives in Germany, where Milke was born.
Superior Court Judge Rosa Mroz rejected prosecutors’ pleas to keep Milke in prison despite the appeals court decision, ruling that there is “serious doubt (about) the validity of the defendant’s alleged confession.”
Besides ordering a new trial for Milke, the appeals court recommended that federal authorities investigate the case for possible civil rights violations involving the lead detective, Armando Saldate. Since the Milke trial, courts have found that Saldate lied in numerous criminal cases.
Milke was convicted in 1990 after Saldate testified that she confessed to having conspired with two men to kill 4-year-old Christopher Milke. Other testimony showed that the men told Christopher he was going to the mall to see Santa Claus but instead took him to a secluded location in the desert and shot him in the head.
Milke adamantly denied that she confessed. The 9th Circuit court noted that Saldate didn’t record the confession or take any notes during the interrogation, during which there were no other witnesses.
Milke’s retrial is tentatively scheduled for Sept. 30. A separate hearing is scheduled for Sept. 23 to determine whether Saldate’s testimony can again be admitted.
Watch US News crime videos on NBCNews.com
Question by LawReader: When will the appropriate Ethics regulators start sanctioning prosecutors who violate the most basic rules of procedure. This lady has spent 24 years on death row….

A majority of U.S. citizens believe congressional leaders in both the House and Senate must be sent to war-torn Syria immediately.

Saturday, September 7th, 2013

WASHINGTON—As President Obama continues to push for a plan of limited military intervention in Syria, a new poll of Americans has found that though the nation remains wary over the prospect of becoming involved in another Middle Eastern war, the vast majority of U.S. citizens strongly approve of sending Congress to Syria.

The New York Times/CBS News poll showed that though just 1 in 4 Americans believe that the United States has a responsibility to intervene in the Syrian conflict, more than 90 percent of the public is convinced that putting all 535 representatives of the United States Congress on the ground in Syria—including Senate pro tempore Patrick Leahy, House Speaker John Boehner, House Majority Leader Eric Cantor, and House Minority Leader Nancy Pelosi, and, in fact, all current members of the House and Senate—is the best course of action at this time.

COURT OF APPEALS RAISES QUESTION ABOUT DUTIES OF GUARDIAN AD LITEM

Friday, September 6th, 2013

The Court of Appeals raises a question about whether or not the GAL should be an advocate for the minor, or an expert advisor to the court. This is a question that the Bar needs to be resolved.

Morgan v. Getter (Ky. App., 2013) 2012-CA-000655-ME February 22, 2013

All the attorneys in this case agree that courts and attorneys find themselves in a quandary due to the lack of statutory definition of the proper role of a GAL in a custody proceeding. Opinions submitted by professionals who are not GAL’s are subject to cross-examination. KRS 403.290(2). However, because a GAL is governed by the Rules of Professional Conduct, lawyers serving as GAL’s cannot be cross-examined by parties as to the basis of their recommendations sought by the courts appointing them. The conflict is patent: is the GAL acting as advocate for a client or for expert counselor to the court? The ambiguity creates a clear potential for prejudice by precluding cross-examination of a GAL by the parties whose interests are at issue and are the very subject matter of the report prepared by the GAL at the behest of the Court.
We believe that the potential for prejudice and the inherent conflict created by lack of clarity in the statute merits (indeed necessitates) the scrutiny of the General Assembly and/or the Supreme Court to define the proper role of a GAL in child custody issues.

Morgan v. Getter (Ky. App., 2013)

Professor Emeritus Alvin Goldman of UK Law School Discusses Federal Debt Ceiling

Friday, September 6th, 2013

In a letter to the editor of the Courier-Journal Professor Emeritus Goldman discussed public debt.
He wrote: Section 4 of the 14th. Amendment to the constitution states:
“The validity of the public debt of the United States…shall not be questioned.” Accordingly, in order to prevent a question respecting the validity of the public debt, every member of the Kentucky congressional delegation has a Constitutional obligation to vote either to end the imposition of a debt ceiling or to raise the current deb ceiling.

(As a former student of Professor Goldman, I agree with his clear-cut reading of the actual language of the Constitution. I wish members of Congress would follow the advice of Professor Goldman and actually read the constitution. LawReader Senior Editor Stan Billingsley UK Law Class of 1971.)

AMENDMENT XIV of the UNITED STATES CONSTITUTION

Passed by Congress June 13, 1866. Ratified July 9, 1868.

Section 1. All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Section 2. Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.

Section 3. No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.

Section 4. The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.

Section 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.

History and Ratification
The fourteenth amendment to the Constitution of the United States was proposed to the legislatures of the several States by the Thirty-ninth Congress, on June 13, 1866. It was declared, in a certificate of the Secretary of State dated July 28, 1868 to have been ratified by the legislatures of 28 of the 37 States. The dates of ratification were:
Connecticut, June 25, 1866
New Hampshire, July 6, 1866
Tennessee, July 19, 1866
New Jersey, September 11, 1866 (subsequently the legislature rescinded its ratification, and on March 24, 1868, readopted its resolution of rescission over the Governor’s veto, and on Nov. 12, 1980, expressed support for the amendment);
Oregon, September 19, 1866 (and rescinded its ratification on October 15, 1868)
Vermont, October 30, 1866
Ohio, January 4, 1867 (and rescinded its ratification on January 15, 1868)
New York, January 10, 1867
Kansas, January 11, 1867
Illinois, January 15, 1867
West Virginia, January 16, 1867
Michigan, January 16, 1867
Minnesota, January 16, 1867
Maine, January 19, 1867
Nevada, January 22, 1867
Indiana, January 23, 1867
Missouri, January 25, 1867
Rhode Island, February 7, 1867
Wisconsin, February 7, 1867
Pennsylvania, February 12, 1867
Massachusetts, March 20, 1867
Nebraska, June 15, 1867
Iowa, March 16, 1868
Arkansas, April 6, 1868
Florida, June 9, 1868
North Carolina, July 4, 1868 (after having rejected it on December 14, 1866)
Louisiana, July 9, 1868 (after having rejected it on February 6, 1867)
South Carolina, July 9, 1868 (after having rejected it on December 20, 1866)

Ratification was completed on July 9, 1868.

The amendment was subsequently ratified by:
Alabama, July 13, 1868
Georgia, July 21, 1868 (after having rejected it on November 9, 1866)
Virginia, October 8, 1869 (after having rejected it on January 9, 1867)
Mississippi, January 17, 1870
Texas, February 18, 1870 (after having rejected it on October 27, 1866)
Delaware, February 12, 1901 (after having rejected it on February 8, 1867)
Maryland, April 4, 1959 (after having rejected it on March 23, 1867)
California, May 6, 1959
Kentucky, March 18, 1976 (after having rejected it on January 8, 1867)

New COAKY Decision Suggests Supplementing CR 26 Expert Disclosure If Co-Party’s Expert Expands on Opinions in Deposition Testimony; Also Rules on Separate Peremptories For Defendants, Trial Management Order Compliance, Witness Bias, And Causation Instruction

Friday, September 6th, 2013

By David Kramer | dkramer@dbllaw.com

More Sharing Services Share|Share on facebookShare on twitterShare on emailShare on printIn a wide-ranging new decision that was not designated for publication, the Kentucky Court of Appeals in a case originating in Boone County suggested that a litigant should supplement its CR 26 expert witness disclosure with new opinions offered by a co-party’s expert at the expert’s discovery deposition rather than simply rely on the deposition testimony as sufficient pretrial disclosure.

In Dornbusch v. Miller, http://opinions.kycourts.net/coa/2011-CA-001354.pdf (rendered 8/30/13, not yet final), the Court, though declining to reverse on that basis, stated that a party who wishes to adopt another party’s expert at trial after the expert provides favorable deposition testimony should supplement its CR 26 discosure with the opinions that the first party wishes to elicit at trial. The Court found that adequate pretrial disclosure was provided under the circumstances and upheld the trial court’s decision permitting the testimony at trial without formal supplementation. It appears the fact that the opinions were rendered in response to cross-examination by plaintiff’s counsel was a factor in the Court’s decision.

Of course, in such situations there may be ethical, practical and logistical implications of requiring one party to provide information from another party’s expert beyond that which was testified to at the deposition, since the party who is supposed to supplement its disclosure after the deposition should not have ex parte communication with the other party’s expert without the retaining party’s authorization. Providing such authorization may undercut an assertion that the co-parties who are thus effectively sharing the expert are antagonistic for purposes of obtaining separate peremptory challenges, which was another issue raised in Dornbusch. In addition, experts routinely expand on their prior opinions during discovery depositions, and parties customarily rely on the statements of opinion given by their own experts in deposition testimony and on the opponent’s cross-examination as to those opinions as additional disclosure without filing follow-up CR 26 disclosures. The Court of Appeals in Dornbusch recognized the trial court’s discretion to determine that such disclosure was adequate to enable an expert to testify in keeping with his or her prior deposition testimony.

On the peremptory challenge issue, the Court relied on Sommerkamp v. Linton, 114 S.W.3d 811 (Ky. 2003), holding that antagonism for purposes of determining whether co-parties should receive separate peremptories is to be determined at the time of jury selection, and will not be subject to second-guessing based on subsequent cooperation between the co-parties at trial. The Sommerkamp factors (includuing separate acts of alleged negligence, separate counsel, and whether an apportionment instruction has been requested) supported the trial court’s decision to afford the defendant’s separate peremptories in Dornbusch.

Another issue the Court upheld the trial court on was declining to exclude a defense expert based on plaintiff’s assertion that one defendant did not strictly comply with an agreed trial management order relating to the provision of a certain amount of advance notice of which witnesses would be called on the next trial day. The Court of Appeals found substantial compliance and held that the trial court did not commit an abuse of discretion in permitting the defendant to call the expert. The proffering defendant in Dornbusch met the letter if not the spirit of the order by advising the plaintiff that it planned to call six witnesses on the next trial day but was considering dropping some, including the expert in question who was ultimately called. In my experience, trial courts usually provide some leeway to parties in complying with such agreed orders as long as the proferring party does not appear to be consciously attempting to achieve ambush on the opponent and no unfair prejudice results. This is particularly true in the late stages of a relatively long trial when timing and logistics become trickier, parties are re-evaluating the need for additional witnesses, and everyone is attempting to conclude the trial.

Other issues the Court upheld the trial court on were precluding plaintiff from cross-examining one of the defendants’ experts on his views on tort reform and the judicial system (the trial court permitted considerable other evidence of the expert’s possible bias to come in) and including in a jury instruction an interrogatory highlighting the fact that the plaintiff was required to prove causation of injury, not merely negligence.

Decisions that are not final should not be cited as authority in Kentucky courts. Citation of unpublished decisions is governed by CR 76.28(4)(c).

David Kramer is a Northern Kentucky attorney practicing at Dressman Benzinger LaVelle psc.

The History of the Middle Finger as told by Hon. Marty Huelsmann

Thursday, September 5th, 2013

Well, now……here’s something I never knew before, and now that I know it, I feel compelled to send it on to my more intelligent friends in the hope that they, too, will feel edified.

Before the Battle of Agincourt in 1415, the French, anticipating victory over the English, proposed to cut off the middle finger of all captured English soldiers.

Without the middle finger it would be impossible to draw the renowned English longbow and therefore they would be incapable of fighting in the future.

This famous English longbow was made of the native English Yew tree, and the act of drawing the longbow was known as ‘plucking the yew’ (or ‘pluck yew’).

Much to the bewilderment of the French, the English won a major upset and they began mocking the French by waving their middle fingers at the defeated French, saying, See, we can still pluck yew!

Since ‘pluck yew’ is rather difficult to say, the difficult consonant cluster at the beginning has gradually changed to a fricative F’, and thus the words often used in conjunction with the one-finger-salute!

It is also because of the pheasant feathers on the arrows used with the longbow that the symbolic gesture is known as ‘giving the bird.’

And yew thought yew knew every plucking thing.

JUSTICE DEPARTMENT TACKLES QUALITY OF DEFENSE FOR THE POOR

Tuesday, September 3rd, 2013

by Carrie Johnson Justice Department September 03, 2013

All over the country, lawyers who defend poor people in criminal cases have been sharing their stories about painful budget cuts. Some federal public defenders have shut their doors to new clients after big layoffs. And in many states, the public defense system has operated in crisis for years.
But an unprecedented recent court filing from the Justice Department has cheered the typically overburdened attorneys who represent the poor and could have dramatic implications for the representation of indigent defendants.
“This is a breakthrough moment,” Norman Reimer of the National Association of Criminal Defense Lawyers told an audience earlier this month at the Law Library of Congress. “If you want to talk about something that could give us cause for optimism, this to me is the most optimistic development we have seen in years.”
At just 17 pages, the filing doesn’t seem like a milestone. But lawyers at the Justice Department say the decision to weigh in on a case about the quality of indigent defense in two cities north of Seattle is nothing short of historic.
“We are absolutely committed to the principle that every indigent person who is accused of a crime is entitled to his or her constitutional right to effective assistance of counsel,” says Jocelyn Samuels, who leads the DOJ civil rights unit.
Plaintiffs in the case say around the time they sued, the cities had just two part-time lawyers running 2,000 misdemeanor cases. The Justice Department didn’t take a position on whether public defenders in those cities — Burlington and Mount Vernon, Wash. — systematically deprived people of their Sixth Amendment right to legal counsel.
But if a judge finds those cities should be on the hook, Justice lawyers urged that an independent monitor be appointed for public defender workloads, the first time ever in a federal case like this one. The overwhelming majority of cases about the quality of indigent defense move through state courts, which makes it much more rare for the U.S. Justice Department to intervene.
“Independent monitors have provided an objective source for assessing accountability, for evaluating whether an entity is complying with the terms of a consent decree and for gaining community confidence in the fact that the reforms will take place in a systemic and effective way,” Samuels says.
For Andrew Cooley, who defends the two city governments in the case, there’s no need for such an unprecedented step. The cities have hired a new law firm to handle defending poor people in misdemeanor cases, and Cooley says they’ve already reduced heavy caseloads in line with a proposal from top lawyers and judges in the state.
CUTTING PUBLIC DEFENDERS CAN COST FEDERAL GOVERNMENT MORE
“And we just don’t think they’ve shown that there was an imminent threat of irreparable harm especially where we’re meeting this new 400-case-per-lawyer limit,” Cooley says. “We are way ahead of any other city in Washington almost, except for a couple, and so it’s not in a situation where we’re well outside the norms.”
Lawyers for the American Civil Liberties Union, who sued on behalf of misdemeanor defendants, would disagree with that assessment. Sarah Dunne of the ACLU didn’t want to comment for this story while the litigation is underway. But in court papers, the ACLU says local defenders don’t return phone calls, don’t visit clients in jail and don’t do any investigating for those clients.
Thomas Giovanni, a former public defender who studied the issues at the Brennan Center for Justice, told an audience at the Law Library of Congress recently that that’s a pattern.
“Many people are arrested, processed and plead before they see a defender at all,” Giovanni said. “It’s not right. And the state system is the main system by which we put people in cages in this country.”
Too often, ACLU lawyers say, the cities of Mount Vernon and Burlington fail to oversee the system or make sure public defenders there are following the Constitution. That’s something an independent monitor could do. Monitors have often been used to oversee jails, schools and other systems — but cities and states regularly chafe at such oversight and the expense that comes with it.
Forcing the cities to pay for that kind of oversight could be counterproductive, according to Cooley.
“They operate a public defense system and a municipal court system only because we want to enforce our own local ordinances. And if this system becomes too expensive, we can just cancel court,” Cooley says. “We don’t have to run a court. We don’t have to run a public defense system. We can just abrogate that to our local county and have them take it all over.”
Still, Cooley says he understands why this case has become a national issue.
“The ruling will influence what hundreds of cities and local governments do just in Washington state; whether it’ll have the same impact outside of Washington isn’t clear. But without a lot of federal guidance on this, I can’t imagine it won’t,” he says.
That’s why lots of people will be watching for the judge’s decision, expected this fall.