Archive for April, 2014

Lawyers can look up jurors on social media but can’t connect with them, ABA ethics opinion says

Friday, April 25th, 2014

Legal Ethics

Posted Apr 24, 2014 9:00 AM CDT
By Terry Carter

Lawyers who want to pick through troves of public information that jurors or potential jurors put on the Internet about themselves may do so, but they may not communicate directly with the jurors, such as asking to “friend” them on Facebook, according to a formal ethics opinion issued today by the ABA Standing Committee on Ethics and Professionalism.

Formal Opinion 466 (PDF) mentions websites and examples of Internet-based electronic social media such as Facebook, MySpace, LinkedIn and Twitter, but notes that because their capabilities change so frequently, the opinion deals only generically with someone’s control over access to their information on websites and ESM or their ability to know who has viewed what is publicly available.

Formal opinions are based on the ABA’s Model Rules of Professional Conduct, which have been adopted by all states except California. The rules are not binding but serve as models that can be adopted or modified. Formal Opinion 466 addresses three situations concerning lawyer review of the Internet footprints of jurors or potential jurors.

• Looking at information available to everyone on a juror’s social media accounts or website when the juror doesn’t know it’s being done. The opinion says the “mere act of observing” is not improper ex parte conduct, much as driving down a juror’s street to get a sense of his or her environs isn’t.

• Asking a juror for access to the his or her social media. The opinion says that is improper, much like stopping the car to ask the juror’s permission to look inside the juror’s house for a better view.

• When a juror finds out, through a notification feature of the social media platform or website, that the lawyer reviewed publicly available information. The formal opinion says the social media provider, not the lawyer, is communicating with the juror, the same as if a neighbor saw the lawyer’s car pass by and told the juror.

On that last point, the formal opinion recommends that lawyers read social media platforms’ terms of agreement for information about matters such as automatic subscriber notification features, and to be aware that this information changes frequently.

The formal opinion hedged on one thorny issue: A lawyer’s obligation to notify the court of information gleaned through social media that indicates possible misconduct by the juror.

The problem is a glitch in one revision made by the ABA’s Ethics 2000 Commission, which conducted an extensive review of the Model Rules in that year. For Model Rule 3.3, the ABA House of Delegates adopted the commission’s recommendation for a new subsection (b) concerning a lawyer’s obligation to notify the court of fraudulent or criminal behavior by a juror or potential juror.

The commission intended that it also include lesser wrongdoing—“improper conduct.” But, the Standing Committee wrote in the Formal Opinion 466, this “was never carried out.”

So, for now, if a lawyer comes across publicly available information about a juror on the Internet that indicates a violation of court instructions but not criminal or fraudulent actions, “applicable law” might trigger the lawyer’s duty to report it to the court under current Model Rule 3.3.(b).

DWI/DUI Facts & Fiction: Urban Myths

Thursday, April 24th, 2014

by David J. Hanson, Ph.D.

The subject of DWI and DUI is surrounded by common myths which are corrected here with scientific information and evidence.
Myth: Sucking on pennies will lower a person’s BAC reading.
Fact: Sucking on pennies or other copper has no effect on alcohol breath tester BAC results. 1 Don’t be a sucker… it makes no cents!
Myth: “Alcohol on the breath” is a reliable sign of alcohol consumption and intoxication.
Fact: Alcohol is actually odorless…. it has no smell. What people perceive as alcohol on the breath is actually the odor of things commonly found in alcoholic beverages. The breath of a person who drinks a non-alcoholic beer will smell the same as that of a person who has consumed an alcoholic beer.
Research using experienced law enforcement officers has found that odor strength estimates are unrelated to blood alcohol concentration (BAC), which ranged in the experiment from zero to .13 (almost twice the legal limit for driving). The estimates made by the officers were no more accurate than random guesses. The researchers concluded that estimates of alcohol on the breath are unreliable. 2
Myth: People who abstain from alcohol are “alcohol-free” and can’t be arrested for DUI.
Standard Drinks
Standard Drinks graphically illustrates information on the equivalence of standard drinks of beer, wine and distilled spirits or liquor. Its accuracy has been established by medical and other health professionals.
Fact: The human body produces its own supply of alcohol naturally on a continuous basis, 24 hours a day, seven days a week. It’s called endogenous ethanol production. Therefore, we always have alcohol in our bodies and in some cases people produce enough to become legally intoxicated and arrested for DUI. 3
Myth: A Breathalyzer will clear from suspicion those diabetics suffering hypoglycemia, whose slurred speech, disorientation, staggering, drowsiness, poor motor control, and flushed face cause them to fail field sobriety tests.
Fact: Hypoglycemia causes acetone in the breath, which the Breathalyzer will record as alcohol on the breath. Unfortunately, about one of seven drivers is diabetic and at risk of false arrest and conviction for DUI/DWI. 4
Myth: Field sobriety tests, being based on scientific principles, accurately identify intoxicated drivers.
Fact: A study conducted by scientists at Clemson University involved showing police officers videotapes of individuals taking six common field sobriety tests. The officers were asked to decide whether suspects were too intoxicated to drive legally. Unknown to the officers, none of the suspects had a BAC above .000. They had zero alcohol in their blood. However, in the professional opinion of the officers, 46% of the completely sober individuals were too drunk to drive! Therefore, use of field sobriety tests led to judgments by law enforcement officers that were about as accurate as flipping a coin. 5
Myth: Breathalyzers and other breath testers are accurate.
Fact: There are many, many sources of error in breath testers. For an explanation of some of them visit Breath Analyzer Accuracy.
Here’s something to think about. Acetaldehyde is a compound in the breath that is falsely recorded as alcohol by breath analyzers.
Important for tobacco smokers is the fact that acetaldehyde levels in their lungs are much, much higher than those in the lungs of non-smokers. 10 This means than smokers are far more likely to have falsely high readings on a Breathalyzer or other machine.
The danger of arrest and false conviction of DWI/DUI is yet another reason to quit smoking.
Even in the absence of any of these common problems and under ideal conditions, alcohol breath testers simply lack precision. Law professor and attorney Lawrence Taylor explains that “Scientists universally recognize an inherent error in breath analysis, generally of plus or minus .01%.” In addition “This has been acknowledged by courts across the country (see, for example, People v. Campos, 138 Cal. Rptr. 366 (California); Haynes v. Department of Public Safety, 865 P.2d 753 (Alaska); State v. Boehmer, 613 P.2d 916 (Hawaii), recognizing an even larger .0165% inherent error). 6
This means that under ideal conditions, which is a highly unlikely situation, a BAC reading of .08 reflects an actual BAC of anywhere from .07 to .09 or even .065 to .095. That’s a margin of error of 20 to 30 percent.
Would this be considered a reasonable margin of error for an accountant, airline pilot, or bank teller? Is this a reasonable margin of error in court, where guilt should be proved beyond a reasonable doubt?
Myth: A person accused of DWI or DWI can demand a jury trial to contest the results of a BAC estimator machine, with its “ideal conditions” 20-30 percent margin of error, especially if there are good reasons to question the accuracy of the results.
Fact: The right to a jury trial is fundamental to English law since the Magna Carta and the framers of the United States Constitution considered is so essential that they included it in the Bill of Rights. The Sixth Amendment states
“In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed…”
The Sixth Amendment provides no exceptions to this fundamental right to a trial by jury inall criminal cases.
Although you may have overwhelming evidence of many types and from many sources that prove your BAC reading is erroneous and that you are innocent of DWI, many states will deny you a jury trial. 7
Myth: Law enforcement officers can’t influence the BAC reading of a breath-testing machine.
Fact: Law enforcement officers can and do influence BAC readings. Law professor and lawyer Lawrence Taylor quotes Dr. Michael Hlastala, Professor of Physiology, Biophysics and Medicine at the University of Washington
“By far, the most overlooked error in breath testing for alcohol is the pattern of breathing…. The concentration of alcohol changes considerably during the breath…The first part of the breath, after discarding the dead space, has an alcohol concentration much lower than the equivalent BAC. Whereas, the last part of the breath has an alcohol concentration that is much higher than the equivalent BAC. The last part of the breath can be over 50% above the alcohol level….Thus, a breath tester reading of 0.14% taken from the last part of the breath may indicate that the blood level is only 0.09%.” 8
Professor Taylor explains that
“Many police officers know this. They also know that if the machine contradicts their judgment that the person they arrested is intoxicated, they won’t look good. So when they tell the arrestee to blow into the machine’s mouthpiece, they’ll yell at him, “Keep breathing! Breathe harder! Harder!” As Professor Hlastala has found, this ensures that the breath captured by the machine will be from the bottom of the lungs, near the alveolar sacs, which will be richest in alcohol. With the higher alcohol concentration, the machine will give a higher — but inaccurate – - reading.” 9
Myth: Alcohol breath testers measure the concentration of alcohol in a person’s blood stream (blood alcohol concentration or BAC).
Fact: Alcohol breath testers don’t actually measure BAC, which can only be done by analyzing a sample of blood. They attempt to measure alcohol in the breath in order toestimate the concentration of alcohol in the blood. That’s why not all states permit their use.
Given the 20-30 percent inherent margin of error in alcohol machines under ideal conditions, it would be wise to avoid being subjected to such an invalid device.
There are good ways to virtually eliminate being unfairly convicted of impaired or intoxicated driving by a BAC estimator. One is to choose not to drink, another is to pace the rate of drinking and follow other tips for maintaining a low BAC, and another is to select a designated driver. For specific tips on these practical solutions visit Breath Analyzer
In reality, alcohol breath testers detect any chemical compounds that contain the methyl group in its molecular structure. Unfortunately, there are thousands of such compounds. Many occur naturally in the human breath or are picked up from disease; inhaling fumes from gasoline, glue, paint, paint remover, “new car smell,” celluloid, cleaning fluids, etc.
Breath testers also assume as constants certain ratios within the human body that actually vary widely from person to person and within the same person over time. For example, many breath-testing machines assume a 2,100-to-1 ratio in converting alcohol in the breath to estimates of alcohol in the blood. However, this ratio varies from 1,900 to 2,400 among people and also within a person over time. This variation will lead to false BAC readings. Some breath analysis machines assume a hematocrit (cell volume of blood) of 47%. However, hematocrit values range from 42 to 52% in men and from 37 to 47% in women. A person with a lower hematocrit will have a falsely high BAC reading. These machines appear to discriminate against female suspects. For more visit Breath Analyzer Accuracy.
Alcohol breath machines are really BAC estimators.
This site does not provide legal opinion or advice and none should be inferred. For legal information always consult a qualified attorney.

Buffalo Bills Cheerleaders Sue Team Over Payment Practices Suit says women worked hundreds of unpaid hours

Thursday, April 24th, 2014

By Mack Gelber
Posted Apr 23rd 2014

Five Buffalo Bills cheerleaders (known as the Buffalo Jills) are suing the team over a failure to pay them in accordance with New York State minimum wage laws, allegedly forcing them to work hundreds of unpaid hours and subjecting them to degrading treatment–including a “jiggle test,” which, unfortunately, is exactly what it sounds like.

One plaintiff told WGRZ that making the team was a dream come true, but the reality that shortly followed was a nightmare. According to the suit, the Jills are wrongly classified as independent contractors, and their pay routinely violates the state’s $8 per hour minimum wage law. They’re also asked to work games, practices, and dozens of charity appearances for free, as well as pay for their $650 uniforms and cover their own travel expenses.

It’s the third suit this year filed by cheerleaders against a National Football League team, following pending wage battles with the Oakland Raiders and Cincinnati Bengals.

“If you are under the control of an entity, we can call them your employer and you’re an employee,” Frank Dolce, the plaintiff’s attorney, told WGRZ. “We don’t want any hokey games as trying to portray somebody as an independent contractor to sidestep and avoid minimum standards that we have in our state.”

Dolce added that the fact that the woman were asked to conduct themselves in accordance with team policies even when they weren’t working undermined their classification as contractors. It allegedly went as far as controlling their hair and nail polish color, and what they could post on Facebook.

Beyond questions of payment, the suit describes “demeaning and degrading treatment” like being required to wear bikinis at an annual golf tournament where the cheerleaders were “auctioned off like prizes.”

Plaintiff Alyssa U. (the plaintiffs are only identified by their first names and last initials) described the aforementioned “jiggle test” cheerleaders were asked to perform for Stephanie Mateczun, the president of Stejon Production Corp., which manages the Jills.

“Everything from standing in front of us with a clipboard having us do a jiggle test to see what parts of our body were jiggling,” she the Associated Press . “And if that was something that she saw, you were getting benched.”

The suit against the Bills seeks unspecified back pay and legal fees, and also names Stejon along with former manager Citadel Communications Co.

U.S. Supreme Court Justices bash Ohio election law

Thursday, April 24th, 2014

By Sabrina Eaton, Plain Dealer Washington Reporter
Follow on Twitter
on April 22, 2014

WASHINGTON, D.C. — At a U.S. Supreme Court hearing Tuesday about an Ohio law that criminalizes telling lies during a political campaign, every Supreme Court justice save for typically silent Clarence Thomas expressed reservations about the law.
Representatives of an anti-abortion group called the Susan B. Anthony List challenged the law on free speech grounds, while the state of Ohio argued it has a compelling interest in policing fraudulent statements that could have an impact on elections. A decision on the case is expected this summer.
While the Justices were asked to merely decide whether a lower court erred in saying the Susan B. Anthony List couldn’t challenge the law because it hadn’t been found guilty of a violation, many of them criticized the law itself. Here’s some of what they had to say:
Chief Justice John Roberts: “In other words, the proceedings are going on and people’s speech is being chilled and it’s back and forth, then the election is over, and people say, oh, forget about it.”
Justice Antonin Scalia: “I don’t care if all the commission says is, you know, there is some reason to believe that they were lying. Even if it’s that minimal, you are forcing them, and it is pretty sure that it’s going to happen because someone will complain, the candidate they are criticizing, you are forcing them to go through this procedure in the midst of an election campaign, right?”
Justice Anthony Kennedy: “Don’t you think there’s a serious First Amendment concern with a state law that requires you to come before a commission to justify what you are going to say and which gives the commission discovery power to find out who’s involved in your association, what research you’ve made, et cetera?”
Justice Stephen Breyer: “Why can’t a person say, there are things I want to say politically and the Constitution says that the State does not have the right to abridge my speech and I intend to say them. And if I say them, there’s a serious risk that I will be had up before a commission and could be fined. What’s the harm? I can’t speak. That’s the harm.”
Justice Ruth Bader Ginsburg: “You said there was no credible threat of prosecution, but what about the harm that is occurring? They’re brought before the commission, they have to answer this charge that they lied, that they made a false statement. And that, just that alone, is going to diminish the effect of their speech because they have been labeled false speakers, and it costs money to defend before the commission, right?”
Justice Elena Kagan: “There are voters out there and they don’t know that probable cause is such a low bar as you describe it. They think probable cause means you probably lied, and that seems a reasonable thing for them to think and that’s a relevant harm and we should just — you know, we don’t even need the prosecution to serve as the relevant harm.”
Justice Samuel Alito: “You have a system that goes on and on, year after year, where arguably there’s a great chilling of core First Amendment speech, and yet you’re saying that basically you can’t get into Federal court.”
Justice Sonia Sotomayor: “How are you ever going to prove that one false statement cost somebody an election?

US SUPREME COURT Law on race can stand

Thursday, April 24th, 2014

by MARK SHERMAN Associated Press on April 23, 2014

WASHINGTON — A state’s voters are free to outlaw the use of race as a factor in college admissions, the Supreme Court ruled Tuesday in a blow to affirmative action that also laid bare tensions among the justices about a continuing need for programs that address racial inequality in America.
The 6-2 decision upheld a voter-approved change to the Michigan Constitution that forbids the state’s public colleges to take race into account. That change was indeed up to the voters, the ruling said, over one justice’s impassioned dissent that accused the court of simply wanting to wish away inequality.
The ruling bolsters similar voter-approved initiatives banning affirmative action in education in California and Washington state. A few other states have adopted laws or issued executive orders to bar race-conscious admissions policies.
Justice Anthony Kennedy said voters in Michigan chose to eliminate racial preferences, presumably because such a system could give rise to race-based resentment. Kennedy said nothing in the Constitution or the court’s prior cases gives judges the authority to undermine the election results.
“This case is not about how the debate about racial preferences should be resolved. It is about who may resolve it,” Kennedy said.
He stressed that the court was not disturbing the holding of a 2003 case from Michigan — which gave rise to the 2006 Constitutional change — permitting the consideration of race in admissions. A Texas affirmative action case decided in June also did nothing to undermine that principle, Kennedy said.
In a separate opinion siding with Kennedy, Justice Antonin Scalia said Michigan residents favored a colorblind constitution and “it would be shameful for us to stand in their way.”
Strongly dissenting from the majority, Justice Sonia Sotomayor said the decision trampled on the rights of minorities, even though the Michigan amendment was adopted democratically.
“But without checks, democratically approved legislation can oppress minority groups,” said Sotomayor, who read her dissent aloud in the courtroom Tuesday. Justice Ruth Bader Ginsburg sided with Sotomayor.
Michigan voters “changed the basic rules of the political process in that state in a manner that uniquely disadvantaged racial minorities,” Sotomayor said.
Judges “ought not sit back and wish away, rather than confront, the racial inequality that exists in our society,” she said. She is one of two justices, along with Clarence Thomas, who have acknowledged that affirmative action was a factor in their college and law school admissions. Sotomayor attended Princeton University and Thomas is a graduate of the College of the Holy Cross. They both attended law school at Yale University. Thomas is a staunch opponent of racial preferences.
At 58 pages, Sotomayor’s dissent was longer than the combined length of the four opinions in support of the outcome.
Chief Justice John Roberts and Justices Stephen Breyer, Samuel Alito, Scalia and Thomas agreed with Kennedy.
Responding to Sotomayor, Roberts said it “does more harm than good to question the openness and candor of those on either side of the debate.”
Justice Elena Kagan did not take part in the case, presumably because she worked on it at an earlier stage while serving in the Justice Department.
University of Notre Dame law professor Jennifer Mason McAward said the opinions by five justices point “to a much more nuanced and heated debate among the justices regarding the permissibility and wisdom of racial preferences in general.”
In 2003, the Supreme Court upheld the consideration of race among many factors in college admissions in a case from Michigan.
Three years later, affirmative action opponents persuaded Michigan voters to change the state constitution to outlaw any consideration of race.
The 6th U.S. Circuit Court of Appeals said the issue was not affirmative action, but the way in which its opponents went about trying to bar it.
In its 8-7 decision, the appeals court said the provision ran afoul of the Equal Protection Clause of the U.S. Constitution’s 14th Amendment because it presented an extraordinary burden to affirmative action supporters who would have to mount their own campaign to repeal the constitutional provision. The Supreme Court said the appeals court judges were wrong to set aside the change as discriminatory.
But Sotomayor took up their line of reasoning in her dissent. She said University of Michigan alumni are free to lobby the state Board of Regents to admit more alumni children, but that the regents now are powerless to do anything about race-sensitive admissions.
Breyer parted company with other liberal justices Sotomayor and Ginsburg, voting to uphold the Michigan ban because it effectively took power from faculty members at the state colleges and gave it to the voters, “from an unelected administrative body to a politically responsive one.” Unlike the conservative justices whom he joined Tuesday, Breyer said he continues to favor “race-conscious programs” in education.
Black and Latino enrollment at the University of Michigan has dropped since the ban took effect. At California’s top public universities, African-Americans are a smaller share of incoming freshmen, while Latino enrollment is up slightly, but far below the state’s growth in the percentage of Latino high school graduates.
The case was the court’s second involving affirmative action in as many years. Last June, the justices ordered lower courts to take another look at the University of Texas admissions plan in a ruling that could make it harder for public colleges to justify any use of race in admissions.
Tuesday’s case is Schuette v. Coalition to Defend Affirmative Action, 12-682.

SCOKY Holds Open and Obvious Hazard Doctrine Does Not Apply in Slip and Fall on Wet Floor Tile Near Store Entrance

Thursday, April 24th, 2014

By David Kramer |

The last post in this blog concerned the case of Shelton v. Kentucky Easter Seals and its limitation on the open and obvious hazard doctrine in a case involving a trip and fall by a hospital visitor who was tending to a hospitalized relative. In a companion decision rendered the same day as Shelton, the Kentucky Supreme Court upheld the Court of Appeals’ reversal of a summary judgment for the defendant in another fall case, this one involving a slip and fall on wet floor tile next to a puddle of water that had accumulated near the front of a sporting goods store from customers tracking moisture in during a heavy rain.
In Dick’s Sporting Goods, Inc. v. Webb, 413 S.W.3d 891 (Ky. 2013), the issue was whether the open and obvious hazard doctrine applied so as to justify dismissal of an injury claim brought by a customer who slipped on a wet tile while trying to step around a puddle that had collected near floor mats at the customer entrance of the store due to the fact a heavy rain was falling outside. The Court of Appeals had reversed based on Kentucky River Medical Center v. McIntosh, 319 S.W.3d 395 (Ky. 2010). While the Supreme Court affirmed the reversal of summary judgment, it held that McIntosh did not govern the case, and that the question of whether the store met its duty of maintaining the premises in a reasonably safe condition was an issue of fact for the jury.
The Court first discussed McIntosh and its adoption of the Restatement (Second) of Torts § 343A, and noted that McIntosh did not change the rule on what constitutes a known or obvious hazard. It went on to hold that, because the plaintiff looked at the tile next to the mats and believed it to be dry, the slickness of the tile (which was actually wet) was not open or obvious to her. Had the customer noticed the wetness of the adjacent tile before stepping on it, presumably an open and obvious hazard analysis would have been appropriate. The Court concluded that the jury should decide whether the store met its duty to maintain the premises in a reasonably safe condition.
This decision suggests that a business or institution with an entrance used by the public should consider taking precautions to remedy slippery conditions caused by the elements, including periodically cleaning or drying floors, rugs or mats near the entrance or at least putting a “caution – wet floor” sign up when it rains or snows and a high volume of customers is likely to cause a constantly wet condition of the floor at the entrance.

Arizona Supreme Court rules marijuana DUI requires proof of impairment

Thursday, April 24th, 2014

4/24/2014 6:01:00 AM

The Associated Press

PHOENIX – Authorities can’t prosecute Arizona motorists for driving under the influence of marijuana unless the person is impaired at the time of the stop, the state Supreme Court ruled Tuesday in the latest opinion on an issue that several states have grappled with across the nation.

The ruling overturned a state Court of Appeals decision last year that upheld the right of authorities to prosecute pot smokers for DUI even when there is no evidence of impairment.

The opinion focuses on two chemical compounds in marijuana that show up in blood and urine tests – one that causes impairment and one that doesn’t but stays in a pot user’s system for weeks.

Some prosecutors had warned that anyone in Arizona who used medical marijuana simply shouldn’t drive or they would risk facing DUI charges, a contention that drew the ire of pot advocates who claimed this interpretation of the law criminalized their legal use of the drug after voters approved it in 2010.

Tuesday’s state Supreme Court opinion removed that threat in explaining that while state statute makes it illegal for a driver to be impaired by marijuana, the presence of a non-psychoactive compound does not constitute impairment under the law.

Yavapai County Attorney Sheila Polk said officers still will be able to arrest people for marijuana impairment under the state’s DUI laws. Crime labs will have to identify whether blood metabolites are active.

But because of the Supreme Court ruling against what’s known as the “zero tolerance ban,” Polk’s office will examine all pending cases and dismiss any charges that are based solely on the zero tolerance provision if they fall under the parameters of the court’s ruling. Defendants who were convicted under the zero tolerance ban can ask courts to revisit their convictions, too.

“I anticipate this will be the case with this ruling and they will be decided on an individual basis,” Polk said.

She noted that the ruling applies to other illegal drugs besides marijuana.

Twenty-one states and the District of Columbia allow medical marijuana use, while two states – Washington and Colorado – have legalized the drug for recreational use by adults over 21. Five other states this year adopted laws that allow the use of non-psychoactive marijuana compounds for at least some conditions, such as epilepsy.

Tuesday’s ruling arises from the case of an Arizona man who was stopped by police for speeding and later acknowledged having smoked marijuana the night before. Blood tests revealed marijuana compounds in his system, however, not the form that causes impairment, according to court records.

He was charged with driving under the influence of a drug and operating a vehicle with the presence of the drug’s metabolite in his system.

The state Supreme Court noted that the language of Arizona’s statute is ambiguous and does not make a distinction between the marijuana metabolite that causes impairment and the one that does not when determining whether criminal charges are warranted. In response to the ruling, the Legislature could clarify its intent for the zero tolerance policy to include both kinds of metabolites, Polk noted.

Courier Reporter Joanna Dodder contributed to this story

Prosecutors had argued that the statute’s reference to “its metabolite” when referring to drug compounds detected in a driver’s system covers all compounds related to drugs, not just those that cause impairment.

This interpretation “leads to absurd results,” the high court panel wrote. “Most notably, this interpretation would create criminal liability regardless of how long the metabolite remains in the driver’s system or whether it has any impairing effect.”

In a dissenting opinion, Justice Ann A. Scott Timmer wrote that the law helps “enhance detection and prosecution of drugged driving” and should remain unchanged. She suggested any constitutional challenges would be better addressed on a case-by-case basis.

Maricopa County Attorney Bill Montgomery expressed disappointment with the ruling, noting the court should have left such a decision up to the Legislature to clarify.

However, attorney Michael Alarid III, who represented the man charged in the case, said “we’re very pleased, and we’re very relieved that it’s finally over.”

“This does have far-reaching impacts on medical marijuana patients,” he added. “And it basically corrects an error in the interpretation of the law.”

LawReader Discusses the Qualifications of Candidates for the Court of Appeals in the Six Contested Races

Thursday, April 24th, 2014

By LawReader Senior Editor (and retired Judge) Stan Billingsley

LawReader is the only Kentucky based complete source for on-line legal research. LawReader has a policy of not endorsing candidates for public office. However there are some issues being discussed among by some judicial candidates which we think are of importance and in this article wish to comment on them. We will comment on the comparative qualifications of the candidates.

At LawReader we read every opinion rendered by the Kentucky Court of Appeals and the Kentucky Supreme Court and we publish a synopsis to those decisions on a weekly basis. This experience gives us a unique view of the work done by our appellate judges and their qualifications.

We would like to note that we cannot recall a better class of current Court of Appeals judges than we now have serving on the bench. Before the public should vote against a judge who is doing a good job we believe they should inform themselves about the qualifications of the candidates.

In order to be a candidate for the Court of Appeals a person must be a citizen of the United States, a resident of both the Commonwealth and of the district from which he is elected for 2 years next preceding his taking office and licensed to practice law in the courts of the Commonwealth, and a licensed attorney for at least 8 years. There are 7 judicial districts with each district having two Court of Appeals judges.


Judge Kelly Thompson Incumbent Opponent
Mark H. Flener
Osi Onyekwuluje

Judge Mike Caperton Incumbent Opponent
Debra Hembree Lambert

Judge James H. Lambert Incumbent Opponent Paul F. Henderson

Judge Denise Guess Clayton Incumbent Opponent Stan Whetzel

Judge Allison Jones Incumbent (recently appointed by Governor Beshear) Opponent
Justin Sanders

Judge Janet L. Stumbo Incumbent Opponent W. Kent Varney

In the 2nd Judicial District (Bowling Green – Southern Kentucky) Judge Kelly Thompson’s
performance as an appellate judge has been stellar. He has authored in excess of 500 majority opinions written with sound legal and practical reasoning and clarity. His dissents have been equally well written and thought provoking.

Judge Thompson has demonstrated his fairness to all litigants and approached his duties without regard to personal or political views. Through his 40 years as a civil and criminal attorney, he has not only gained the legal knowledge to ably serve on our Court of Appeals but also the practical knowledge to understand the consequences of judicial decisions for our businesses and citizens.

Judge Thompson’s opponents do not share his high level of legal experience and ability to deal with the myriad of cases before the Court of Appeals. We are informed that his opponent, Osi Onyekwuluje, has a very limited law practice.

Thompson’s second opponent, Mark Flener has specialized in bankruptcy for the past 25 years. With his legal experience focusing on the important but narrow area of Bankruptcy law his qualifications as a state appellate judge are justifiable questioned when compared to Judge Thompson. Mr. Flener’s lack of knowledge regarding Kentucky’s appellate process was exemplified in an interview with the Bowling Green Daily News on January 29, 2014, wherein Mr. Flener proposed implementing a mediation program at the state appeals court level as a means for cases to be resolved on appeal without the parties incurring too much additional expense. We note that a prehearing conference program has been in place on the state appellate level since 1978. This program serves as an appellate mediation program. During the life of the program, over 7,000 cases have settled through the prehearing conference program saving parties the additional expenses on appeal for all of these years. Flener apparently stubbed his toe when he called for a program which has been in existence for many years.

Judge Thompson has been an able Judge for seven years with extensive experience prior in his service as an appellate judge.

Judge Mike Caperton Incumbent in the 3rd District (South Central Kentucky) is opposed by former Judge Debra Hembree Lambert. Judge Caperton has authored several outstanding and far reaching decisions which uphold constitutional rights.

In the 4th. District, (Louisville) Judge Denise Guess Clayton is opposed by Stan Whetzel. Clayton has earned a very respected reputation as a Judicial leader and has authored numerous important decisions which demonstrate her ability as one of our finest judges. We don’t know much about Stan Whetzel.

In the 6th. district (Northern Ky. …Oldham to Campbell county,) Judge Allison Jones was recently appointed to fill a vacancy. She was appointed by Governor Beshear. Since her appointment she has authored a limited number of cases. Her residence in Oldham County suggests that her opponent Justin Sanders, an experienced trial lawyer, who resides in heavily populated Kenton County has a distinct advantage. Justin Sanders is well known in Boone, Kenton and Campbell counties. Judge Jones has experience as an administrative law judge. Many attorneys in Northern Kentucky have expressed their concern that the election of Judge Jones “would be like giving Louisville a third Appellate judge at the expense of Northern Kentucky”. Judge Jones lives in Prospect which borders Jefferson County.

In the 7th. Judicial District (Eastern Kentucky) the incumbent is Judge Janet L. Stumbo. Judge Stumbo has an outstanding reputation for her well written decisions. Her years of tenure as an appellate judge have proven her to be one of our most respected judges. Her opponent W. Kent Varney. He is not well-known to us.

LawReader invites any candidate to these offices (or their supporters) to send their comments to us and we will publish them on Kentucky Legal News, a free public feature of

U.S. Supreme Court hears case challenging Ohio ban on political lies

Wednesday, April 23rd, 2014

Apr. 22, 2014 |
Written by Deirdre Shesgreen
Gannett Washington Bureau

WASHINGTON — Ohio’s ban on political lies came under sharp scrutiny at the Supreme Court on Tuesday, with a majority of the justices skeptical that the law did not chill free speech even if it’s not enforced through criminal prosecution.
In a lively, one-hour argument that touched on broad First Amendment questions and nitty-gritty legal issues, the justices highlighted the electoral implications of the legal clash before them — which started in Cincinnati during the 2010 congressional elections.
The justices seemed to reject Ohio State Solicitor Eric Murphy’s argument that those challenging the state law, which prohibits making false statements about political candidates, could not show it had stifled their speech in the past or would do so in the future.
Murphy also argued the state has a “compelling interest” in policing false speech in campaigns because it could sway the outcome of an election.
But Justice Samuel Alito, a conservative, said Ohio appeared to have a system of regulating election rhetoric under which “arguably there’s a great chilling of core First Amendment speech, and yet you’re saying that basically you can’t get into federal court.”
Michael Carvin, an attorney for the plaintiffs — Susan B. Anthony List, an anti-abortion group, and COAST, a Cincinnati anti-tax group — argued the two groups faced a “clear and very credible” threat of prosecution under the law, curbing their First Amendment rights and giving them the right to challenge the Ohio ban in a lower court.
“This is election speech . . . It’s obviously the core of the First Amendment,” Carvin said. “All we’re trying for is our day in court.”
The question before the justices is not whether the Ohio law violates the First Amendment, although that was front-and-center on Tuesday. Instead, the justices are weighing how and when a group or individual can challenge the law.
The court’s decision could have major consequences for elections in Ohio, as well as the 15 other states that have similar bans on political lies. And the justices seemed very aware of the potential impact of their ruling.
“The (2014) elections are coming up,” said Justice Stephen Breyer, one of the court’s liberals. “People have to know what they can say and what they can’t say.”
The Cincinnati case began during the 2010 race between then-Democratic Rep. Steve Driehaus and his GOP challenger Steve Chabot of Westwood. The anti-abortion group SBA List wanted to launch a billboard ad campaign accusing Driehaus of supporting taxpayer-funded abortions by voting in favor of the federal health reform law.
Driehaus sought a ruling from the Ohio Elections Commission to block the ads, saying they violated the state’s false-claims law. The billboards never went up because Driehaus’ attorney threatened the company with legal action.
The elections commission, after conducting a preliminary review, found “probable cause” that SBA List had violated the state law. The commission never reached a final determination because Driehaus dropped the matter after losing the election.
But SBA List challenged the Ohio law in federal district court, arguing it violated the group’s free-speech rights. COAST also challenged the law, saying it also wanted to criticize Driehaus but was afraid to do so after seeing SBA List dragged before the commission.
The district court dismissed the suits, ruling SBA List and COAST lacked proof of legal injury. They didn’t have the right to sue, the court said, because no criminal charges were filed.
The U.S. Court of Appeals for the Sixth Circuit affirmed that decision, saying the parties couldn’t challenge the law if there was no imminent threat of enforcement.
Carvin told the justices that the lower courts’ decisions put advocacy groups like SBA List in an “absurdly high straightjacket,” requiring them to be prosecuted for making false statements before they could challenge the law as a violation of their First Amendment rights.
It “put us in this Catch-22 endless cycle of suppressing speech, deterring speech, chilling speech, but never being able to get to a court to adjudicate our First Amendment (claims),” he said.
Carvin said SBA List planned to repeat its political attack in the next elections, and he mentioned in particular a plan to target Rep. Marcy Kaptur, D-Toledo.
“The only difference will be, instead of Representative Driehaus, we will substitute Representative Kaptur,” Carvin said.
The Obama administration weighed in on behalf of SBA List and COAST. Eric Feigin, a top attorney with the Department of Justice, told the justices that the election commission’s actions amounted to a “significant sanction” and should be enough to give the groups standing in federal court

IRS to face the Supreme Court over summons power

Wednesday, April 23rd, 2014

IRS to face the Supreme Court over summons power
Reuters April 22, 2014

The Internal Revenue Service will go before the U.S. Supreme Court on Wednesday to defend the way it enforces its power to issue legal summonses to obtain sensitive documents from taxpayers who refuse to cooperate with audits.
The IRS is squaring off against Michael Clarke, a West Palm Beach, Florida, investor who is arguing that the U.S. tax agency in 2011 improperly issued a summons “as retribution” against him and his business partners for resisting an audit.
At issue is what legal standards taxpayers must meet to get a court hearing if they think the IRS has issued a summons for an improper purpose. Clarke maintains he should have gotten a hearing, while the IRS says such hearings are unnecessary.
Clarke maintains, according to court filings, that the IRS should have to explain its summons intentions at an evidentiary hearing before a court order is approved by a judge.
But the IRS argues that Clarke does not need a hearing because taxpayers already have the legal rights to challenge a summons.
Taxpayers cannot “engage in a fishing expedition about the motives of IRS agents,” the government said in court documents, adding that a win for Clarke would bog down tax enforcement with another layer of litigation.
A lawyer for Clarke declined to make his client available for comment. The IRS also declined to comment.
Clarke’s ‘Catch-22′
Multinational businesses that do battle with the IRS over taxation regularly will be watching the Clarke case to see if the agency’s summons power can be checked, tax lawyers said.
Under the law, the IRS can issue a summons for information when a taxpayer refuses to provide it voluntarily. If the taxpayer ignores the summons, the IRS can then ask the U.S. Justice Department to seek a court order from a judge.
Judges routinely rubber-stamp requests for court orders to enforce summonses without first holding evidentiary hearings.

Texas Commission on Law Enforcement has launched an inquiry into the Dallas Police Department’s training practices amid concerns that standards for training police recruits have been lowered,

Tuesday, April 22nd, 2014

Follow: @tanyaeiserer

Posted on April 18, 2014 at 7:26 PM

DALLAS — The Texas Commission on Law Enforcement has launched an inquiry into the Dallas Police Department’s training practices amid concerns that standards for training police recruits have been lowered, an agency spokeswoman said Friday.

News of the agency’s inquiry came a day after Police Chief David Brown suspended the police department’s sobriety testing training classes for police academy recruits, pending a review to ensure the department is in compliance with federal highway safety administration standards.

“We will continue to review of all of our training to ensure our high standards are not compromised in any way and that we make the necessary adjustments to continually improve,” Brown said in the statement.

Brown put the training classes on hold after Dallas Police Association President Ron Pinkston released an email from the commander overseeing recruit training academy stating that recruits would no longer have to pass the “practical application portion” of standardized field sobriety test training. They would only have to pass the written exam.

“The instructors are all up in arms because they are dictating how they have to train and now they’re being told by management, ‘Oh, you can’t train that way,’” Pinkston said. He compared it to requiring that drivers only having to pass a written test, but not having to actually prove to an instructor that they can drive.

In those classes, recruits are taught how to conduct three standardized field sobriety tests on suspected drunken drivers. There’s one where an officer moves a pen in front of a person’s eye to test for visible jerking of the eye, the one-legged standing test, and the walk and turn test.

“These tests are scientifically validated, but only if they are done properly, according to standards,” said Charlie Foster, a retired Addison police officer who has testified as a defense witness in hundreds of drunken driving cases. “If they’re not doing it according to the standards, it loses the validity and could very well lead to someone that is not intoxicated being arrested.”

The National Highway Traffic Safety Administration mandates that in order to pass the class, officers must be able to “properly administer the complete test battery at least once, in an instructor’s presence, without deleting or erroneously performing any of the critical administrative elements of the tests.” Typically, the students in the class conduct the sobriety tests on volunteers who have had alcohol.

“These tests need to be administered properly,” Foster said. “If you have an officer who can’t do that, you need to get rid of the officer. [...] If they can’t do it in the classroom, they’re probably not going to be able to do it out on the street when they’re in a very stressful situation.”

The Texas Commission on Law Enforcement requires that recruits pass that training class to be licensed as police officers.

With hundreds of police academy recruits currently in the academy, Pinkston said the department won’t be able to keep the classes suspended for long. A police spokesman said that he did not know how long the classes would be on hiatus.

The controversy over the standardized field sobriety testing class was the latest dust-up between Brown and Pinkston over the department’s recruit academy standards. Pinkston contends that police commanders are lowering standards. Brown has repeatedly denied the allegations.

Their public spat began April 10 when Pinkston sent a letter to City Manager A.C. Gonzalez stating, among other things, that that the department was “attempting to circumvent” its own rules on testing for police pursuit driving for a recruit who had repeatedly failed the test.

The department posted a statement on its blog last Friday denying Pinkston’s allegations.

A statement posted on Thursday brought up the issue of race.

It cited the fact that eight minority recruits (compared to one white recruit) had failed the sobriety testing training classes in the last five years as the reason that the department had temporarily suspended the classes. The statement also noted that only minority recruits – five recruits total – had failed the pursuit driving course in that same time span.

Pinkston said this is not a racial issue.

“If you look at attrition in the academy, the attrition is all over the place,” Pinkston said. “In defensive tactics, they fail out white females more than they do anybody else. The overall attrition rate is higher for white males than anybody in the academy.”

Brown declined a request for an interview.


Six Amendments: Retired Justice Stevens calls for Changes In the Constitution

Tuesday, April 22nd, 2014

Six Amendments: How and Why We Should Change the Constitution
John Paul Stevens
Little Brown, 172 pp., $23

Reviewed by Stewart Pollock

Justice John Paul Stevens retired from the United States Supreme Court in 2010 after 35 years of distinguished service, but his reverence for the Constitution remains unabated.

In “Six Amendments,”; he identifies Supreme Court decisions that, over the past 40 years, have so adversely affected basic law as to require six specific constitutional amendments.

Regarded as an original thinker, Stevens cut his own path on the court, and his book invites the reader to join him on his journey. Along the way, you will question decisions of the current Supreme Court majority and wonder about the meaning of the Constitution.
This is a book for thinkers. It also is a handbook for constitutional change.

The lightning rod among the proposed amendments is a change to the Second Amendment, which in its present form provides: “A well-regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms shall not be infringed.”

Until recently, Stevens explains, federal courts understood the amendment was subject to two limitations: “It applied only to keeping and bearing arms for military purposes,” and it limited the power of the federal government, but not state or local government, “to regulate the ownership or use of firearms.”

Since 2008, however, the Supreme Court has profoundly expanded the Second Amendment. In a 2008 opinion, the court ruled “that the Second Amendment protects a civilian’s right to keep a handgun in his home for purposes of self-defense.” In 2010, the court held “that the Due Process Clause of the Fourteenth Amendment limits the power of the city of Chicago to outlaw possession of handguns by private citizens.”

Those two opinions, Stevens writes, “curtail the government’s power to regulate the use of handguns that contribute to the roughly eighty-eight firearm-related deaths that occur every day.”

To support his argument for gun control, he points to the massacre of 20 first-graders and six adults at the Sandy Hook Elementary School in Newtown, Conn., on Dec. 14, 2012, and the tragic mass killings in recent years in Virginia, Colorado and Arizona.
Stevens dissented from both opinions, which have “given federal judges the ultimate power to determine the validity of state regulations of both civilian and militia-related uses of arms.”

A dissent, however, is often an appeal to a future generation. So is a book that echoes the dissent. Notwithstanding foreseeable opposition from gun owners and the National Rifle Association, Stevens recommends adding five words to the Second Amendment: A well-regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms when serving in the Militia shall not be infringed.

Other proposed amendments include amending the supremacy clause in Article Six to permit Congress to require state officials, in addition to state judges, to enforce federal law. Stevens believes such a requirement will enhance “the federal response to national catastrophes or acts of terrorism,” as well as ordinary federal programs.

“The simple interest of justice” justifies another amendment that would abolish sovereign immunity for states, state agencies or state officials from liability for violating federal legislation or the U.S. Constitution. Yet another amendment would change the Eighth Amendment by declaring the death penalty unconstitutional as a form of cruel and unusual punishment. As a practical matter, that proposal would not affect New Jersey, because the Legislature repealed the death penalty in 2007.

New Jersey, however, moves front and center in Stevens’ proposal “for an amendment to the constitution that merely requires federal judges to apply the same rule in cases challenging political gerrymanders that they have applied to racial gerrymanders.” He contends that congressional and legislative districts should honor natural or historic boundary lines, something that New Jersey failed to do in drawing the boundaries of the 1983 congressional map.

The court, in a 5-4 opinion, rejected the 1983 map as not having been drawn in good faith. The map, which Stevens describes as “bizarre,” “grotesque” and “uncouth,” is included as a full-page exhibit. His proposed amendment would require congressional and legislative districts to be “compact and composed of contiguous territory.”

Stevens also proposes a constitutional amendment that would permit state and federal legislation prohibiting corporations from making unlimited contributions in political election campaigns, and authorize Congress and the states to place “reasonable limitations” on such contributions.

In one sense, Stevens’ proposed amendments are quixotic. In a larger sense they are inspiring, and may lead to action by a future generation.

Stewart Pollock, a retired justice of the Supreme Court of New Jersey, is of counsel to the law firm of Riker Danzig Scherer Hyland & Perretti.

U.S. Supreme Court will decide whether police have probable cause to make a traffic stop if it turns out the officer was mistaken in thinking the driver violated the law.

Tuesday, April 22nd, 2014

By The Associated Press
Published: Monday, April 21, 2014 at 11:30 AM.

WASHINGTON — The Supreme Court will decide whether police have probable cause to make a traffic stop if it turns out the officer was mistaken in thinking the driver violated the law.

The justices on Monday said they will hear an appeal from a North Carolina man who claims his Fourth Amendment rights were violated when police pulled him over for having a burned-out brake light. The police officer ultimately found cocaine in the car and the driver and his passenger were convicted of drug trafficking.

A state appeals court ruled the stop was impermissible because state law only required a car to have one functioning brake light. But a divided North Carolina Supreme Court reversed, finding the stop was permitted if the officer’s mistake about the law was reasonable enough to conduct a routine traffic stop.

The issue has split various state and federal appeals courts. To make a traffic stop, the Fourth Amendment typically requires police to have a reasonable suspicion that a traffic law has been violated. But some courts have held that as long as a police officer has a reasonable basis to believe a traffic violation was committed, a stop is constitutionally permissible even if it is later discovered there was no actual breach of the law.

Other courts have held that no matter how reasonable or understandable the mistake was, it can’t justify a traffic stop. These courts have ruled that any evidence obtained from a stop based on a mistake of law is inadmissible in court.

The Supreme Court will hear argument in the case of Heien v. North Carolina, 13-604, in its new term beginning in October.

Eyewitness testimony losing credibility with lawmakers, law enforcement

Sunday, April 20th, 2014

The Associated Press

April 18, 2014 at 11:07 AM

The American legal system offers few moments as dramatic as an eyewitness to a crime pointing his finger across a crowded courtroom at a defendant.
The problem is that decades of studies show eyewitness testimony is only right about half the time — a reality that has prompted a small vanguard of police chiefs, courts and lawmakers to toughen laws governing the handling of eyewitnesses and their accounts of crimes.
Reform advocates say procedures long regarded as solid police work, from bringing a witness to a crime scene where he might see a suspect in handcuffs to the subtle encouragement of a detective during a police lineup, can fundamentally alter what someone believes they saw.
“It’s not the case that eyewitnesses are inherently unreliable,” said Gary Wells of Iowa State University, who has researched the field of eyewitness identification since the 1970s. “But we can make it better by cleaning up the procedures around it.”
Prosecutors, however, have opposed the efforts, arguing that the changes erode their powers, even as studies have shown that eyewitnesses are about half as likely to choose the correct suspect out of a lineup as they are to choose some combination of the innocent fillers or no suspect at all when the correct one is present. The reexamination of eyewitness testimony comes at a time when technology and other forensic analysis are being given greater weight.
In Maryland, legislators this week passed a bill that overhauls the state’s eyewitness identification procedures, but not before the prosecutor for Baltimore County testified against it. “What we see is a fairly organized and aggressive attack on all forms of evidence prosecutors use to get convictions,” said Scott Burns, executive director of the National District Attorneys Association.
Burns said criminal defense attorneys, groups that try to get wrongful convictions overturned and the American Civil Liberties Union are part of a bloc that is selecting outlier cases of prosecutorial misconduct or witness mishandling and applying that to the entire system.
It’s that attitude that gives advocates of reform migraines, said Rebecca Brown, state policy reform director for the Innocence Project, which pursues exonerations of the wrongfully convicted.
“We joke in the office that it’s like climate change,” she said. “There’s settled science, and then there’s this group of people denying it.”
The U.S. Supreme Court had a chance to establish a national standard for eyewitness testimony when it handled a 2012 case from New Hampshire. The court instead delegated that responsibility to the states, which could choose to overhaul their laws or do nothing at all. Most chose the latter.
Advocates of reform seek several major changes to the way police and prosecutors operate. They want “blind” administrators of lineups — people who don’t know who the suspect is, and a lineup that doesn’t unfairly single out a suspect. They want police to record an eyewitnesses’ degree of confidence in his identification, and they want any photo lineups of suspects to be randomized.
In Texas, the state allowed for the possibility that agencies might need to cut the law to fit their individual needs. Law enforcement agencies must either adopt the Law Enforcement Management Institute of Texas’ guidelines for lineups composed of people or photographs, or submit their own plan that conforms to the law.
In Oregon and New Jersey, the state supreme courts implemented stringent guidelines for the treatment of such testimony, and another seven states, from Connecticut to North Carolina, along with a number of cities have overhauled their treatment of eyewitness testimony.
A case that’s playing out in Oregon, advocates say, highlights the problems.
Two women, both white, peered through their rain-streaked car window at a crowded street corner in 2007 and saw a black man fire a handgun four times. One person fell dead and the shooter ran at their car. They screamed. They made it a half-dozen blocks before police stopped them and asked them what they saw. Not much, they said, and what they did see was blurred by the rain, the dark and their own terror.
But two years later, after seeing Jerrin Hickman in the courtroom seat normally reserved for defendants, one of the women identified him. “Oh, my God,” she said, hyperventilating, according to appellate filings in the murder case. “That’s him, that’s him, that’s him.”
Their testimony was unanimously dismissed as implausible by the Oregon Court of Appeals, which found that a host of factors that have rarely been given weight in American criminal law unfairly twisted the recollections of the two women and their confidence in their own testimony.
For one, studies have shown racial differences between witness and suspect makes identification much more difficult. Second, the girls hadn’t given any indication of their confidence in their choice of suspect initially, so it was impossible to later judge its value against their later certainty.
And most important to the suspect’s attorneys, the first time the girls saw the suspect since the shooting was when he was seated at the defense table, which was “egregiously suggestive.” The case is under consideration by Oregon’s highest court, the first challenge to the state’s new law regarding eyewitnesses.
Multnomah County district attorney Rod Underhill said as a prosecutor, he’s prepared to embrace the reforms but worries that the realities for small departments could turn a good law into a logistical nightmare.
“If it’s 10 p.m. on Saturday night, you only have one officer working and the other is a half-hour away on the other side of the county,” Underhill said. “That makes getting a blind administrator difficult, if not impossible.”
Underhill said law enforcement’s top priority is justice, but he is worried about a one-size-fits-all policy.
– Nigel Duara, The Associated Press.
– Dura can be reached on Twitter at


Friday, April 18th, 2014

The Opinion Pages|Editorial NEW YORK TIMES
Better Rules for Bad Lawyers


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In 2009, a lawyer in New York helped his client settle a claim for $30,000. The lawyer then had the check issued in his own name, deposited it into his own account and used all of the funds for himself. The client demanded his money to no avail.

It took more than three years before the lawyer was disbarred for stealing a client’s funds. During all that time, the lawyer, who already had a history of serious disciplinary infractions, kept working.

This is a disturbingly common story in New York, which has more lawyers than any other state. Punishments for those who violate obligations to a client — if not the law — are slow, inconsistently levied and often hidden from the public.

Professional discipline is essential to the integrity of any legal system. Unfortunately in New York, the process for dealing with lawyer misconduct is “deficient in design and operation,” writes Stephen Gillers, a professor at New York University School of Law in an article to be published next month in N.Y.U.’s Journal of Legislation and Public Policy.

Professor Gillers examined attorney-discipline cases going back to 1982 and all 577 court opinions imposing sanctions issued over the past six years. In addition to the many instances of “unacceptable” delay in the official response to complaints about lawyers, he documents the great disparity in the way similar violations are handled by courts in different parts of the state.

For example, a lawyer who filed false documents, made false statements and improperly notarized a client’s signature was suspended for two and a half years by the appeals court in Manhattan. But, in Brooklyn, comparable actions by a different lawyer resulted only in a formal rebuke but not a suspension. In upstate New York, appellate courts rarely explain the reasons for their decision to sanction or not sanction, and, when they do, they often don’t follow their own earlier rulings.

Perhaps most troubling is the overall lack of transparency that pervades the system. Unlike 40 other states, New York does not inform the public of pending charges against lawyers. It is also unnecessarily difficult to learn when a lawyer has been officially sanctioned, even though sanctions — which can include censure, suspension or disbarment — are part of the public record.

At the very least, New York, which has 166,000 lawyers, should adopt uniform standards for disciplining lawyers. The American Bar Association set clear and sensible standards in 1986, but some states have successfully established their own.

In California, for example, almost all disciplinary cases are handled by a State Bar Court that is staffed with full-time judges who issue thorough rulings. Professor Gillers also recommends that every lawyer’s disciplinary history be made easily available online, and that law firms tell potential clients how to access the information.

Not everyone will be eager to upset the status quo, including the appellate judges who would like to maintain their control over the process, and the lawyers who benefit from the leniency of local courts. But it must change if New Yorkers are to have confidence in the lawyers who represent them.

Meet The New York Times’s Editorial Board »

Education and Workforce Development Cabinet Annual KY. jobless rates released for 2013

Friday, April 18th, 2014

Press Release Date: Thursday, April 17, 2014

FRANKFORT, Ky. (April 15, 2014) — Annual unemployment rates were lower in 51 Kentucky counties in 2013 than in 2012, while 57 county rates went up and 12 counties had the same annual rate for both years, according to the Kentucky Office of Employment and Training, an agency of the Kentucky Education and Workforce Development Cabinet.

The annual jobless rate for Woodford County was the lowest in the Commonwealth in 2013 at 6.1 percent. It was followed by Fayette and Oldham counties, 6.5 percent each; Scott County, 6.7 percent; Boone, Daviess, Franklin, Madison and Shelby counties, 6.8 percent each; and Caldwell, Owen and Warren counties, 7 percent each.

Leslie County recorded the state’s highest annual unemployment rate in 2013 — 17.7 percent. It was followed by Harlan and Magoffin counties, 17.6 percent each; Letcher County, 17.3 percent; Knott County, 16.1 percent; Fulton and Jackson counties, 15 percent each; Bell County, 14.9 percent; Perry County, 13.7 percent; and McCreary County, 13.5 percent.

Unemployment statistics are based on estimates and are compiled to measure trends rather than actually to count people working. Civilian labor force statistics include non-military workers and unemployed Kentuckians who are actively seeking work. They do not include unemployed Kentuckians who have not looked for employment within the past four weeks. The statistics in this news release are not seasonally adjusted to allow for comparisons between United States, state and counties figures. The statistics in this news release may be revised in the future.

Learn more about the Office of Employment and Training at


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New Board Member for Kentucky Retirement System

Thursday, April 17th, 2014

New Board Member for KRS
Press Release Date: Wednesday, April 16, 2014
Revision Date: Thursday, April 17, 2014
Contact Information: Kentucky Retirement Systems
Questions call: 1-800-928-4646

KRS welcomes Randy K. Stevens, who has been appointed by Governor Steve Beshear to serve on the Kentucky Retirement Systems Board of Trustees. He currently works as the District Manager for Trimble Water District #1 located in Bedford, Kentucky. Mr. Stephens was appointed to fill the position as a result of the recent resignation of Richard Tanner. Mr. Stevens will be sworn in at the Board’s April 17 Annual Meeting and will serve the remainder of the unexpired term ending July 1, 2017.

Secretary Grimes and Attorney General Conway Join Together to Preserve Election Integrity

Thursday, April 17th, 2014

Press Release Date: Tuesday, April 15, 2014
Contact Information: Lynn Sowards Zellen,
Bradford Queen,
(502) 564-3490

Secretary of State Alison Lundergan Grimes, Kentucky’s chief election official, and Attorney General Jack Conway, the state’s chief law enforcement official, are again joining forces to prevent vote fraud in the May 20 Primary Election. Members of the Kentucky Election Integrity Task Force, headed by Grimes, met today to coordinate efforts to protect the integrity of the election.

Because there are federal races on the ballot, the United States Attorney’s offices in the Eastern and Western Districts are members of the task force. As part of Grimes’ continued effort to expand Kentucky’s traditional defenses against vote fraud, the Federal Bureau of Investigation, Kentucky State Police, and Kentucky State Board of Elections attended Tuesday’s meeting.

In addition to a robust task force, new laws Grimes championed and the task force supported during the 2013 General Assembly will help ensure the May 20 Primary is free and fair. For the first time, victims of sexual assault and domestic violence are eligible for the Secretary of State’s Address Confidentiality Program, keeping their identities out of publicly available voter records and allowing them to vote by mail-in absentee ballot. And lists of absentee voters will not be made public until after Election Day, helping protect them from being subjected to intimidation or vote buying.

“Safeguarding the right to vote and ensuring the reliability of the election process requires cooperation among all the stakeholders and making sure they have the necessary tools,” said Grimes. “I’m proud of our continued work with the expanded task force and ongoing efforts to make Kentucky’s election laws more efficient and effective.”

Grimes and Conway stressed that vote fraud will not be tolerated and that voters play an important role in maintaining the integrity of elections.

“While intra-agency cooperation is important to ensure elections in Kentucky are free and fair, it is critical that voters and poll workers around the state also be alert and report unusual election activity,” said Grimes.

“We’re doing everything we can to ensure an honest and fair election for all Kentuckians,” said Conway. “Investigators from my office will be patrolling precincts and polling places on Election Day, but we also need citizens to join in the effort by reporting any election irregularities.”

The Office of the Attorney General has jurisdiction to investigate and prosecute election law violations. The Attorney General’s office also observes elections, operates a toll-free hotline to receive allegations of election law violations, and conducts post-election audits of randomly selected counties.

The number for the Attorney General’s Election Fraud Hotline is 800-328-VOTE (800-328-8683). The Hotline is open throughout the year during normal business hours and from 6 a.m. to 7 p.m. (EST) on Election Day. On the day of the 2012 Primary, the Hotline received 31 calls. There were 183 calls from 57 counties during the 2012 General Election. Leading up to the election, citizens may contact their county clerk or the State Board of Elections at 800-246-1399 or 502-573-7100 to express concerns or request election information.

Members of the news media covering the election may be in the voting room for the limited purpose of filming the voting process. However, as per OAG 88-76, the media may not conduct interviews with voters inside the voting room, record the identity of voters, or disrupt the voting process, a Class A misdemeanor. See KRS 117.236.

New Supreme Court Rule re: filing of Ethics Claims against Attorney

Tuesday, April 15th, 2014

SCR 3.160 Initiation of disciplinary cases

(1) After review by Bar Counsel pursuant to subparagraph (3) of this Rule, any sworn written statement of complaint against an attorney for unprofessional conduct shall be filed with the Disciplinary Clerk who shall promptly notify the attorney by certified mail, sent to the address maintained by the Director pursuant to SCR 3.175, or other means consistent with the Supreme Court Rules and Civil Rules, of the complaint, and that he/she has twenty (20) days to respond to the complaint. Upon completion of the investigation by the Office of Bar Counsel the matter shall be assigned to an Inquiry Commission panel by rotation.

(2) Notwithstanding the provisions of paragraph (1), when it comes to the attention of the Inquiry Commission from any source that an attorney may have engaged in unprofessional conduct, the Inquiry Commission, or a three-person panel thereof, may initiate and conduct an investigation, and if it believes from its investigation that there is sufficient evidence to justify its filing a complaint against the attorney it may file such a complaint.


(A) Upon receipt of a verbal or written allegation of a violation of the Rules of Professional Conduct, or sworn complaint, the Office of Bar Counsel will initially determine, under the direction of the Chair and Inquiry Commission, whether the matter is appropriate for alternative disposition. Alternative disposition may include, but is not limited to:

i. Informal resolution

ii. Referral to Fee Arbitration under SCR 3.810

iii. Legal negligence arbitration under SCR 3.800

iv. Legal or management education programs

v. Remedial ethics education programs

vi. Referral to KYLAP under SCR 3.970(1)(c)

vii. Issuance of a warning letter.

(B) A complaint is not suitable for alternative disposition if it alleges serious misconduct in which the sanction would more than likely result in a suspension. Additionally, some ethical violations warranting a private or public reprimand may not, under all circumstances, be eligible for alternative disposition.

(C) After review and such preliminary investigation as may reasonably be necessary, the Office of Bar Counsel may attempt informal resolution and subsequently close the Complaint. If the acts or course of conduct complained of merit referral under 3(A)(ii)-(vi), and do not warrant a greater degree of discipline, the Office of Bar Counsel may issue a warning letter, which will be maintained in the investigative file of the Office of Bar Counsel but not be considered as discipline, or it may recommend remedial ethics, related legal or management education programs, fee arbitration, or KYLAP, completion of which would result in the complaint being dismissed.

(D) If Bar Counsel deems a written and sworn complaint to state an ethical violation, such that alternative disposition is not appropriate or the Respondent will not consent to or complete the alternative disposition program, the matter shall proceed under subsection (1) above.

(E) If Bar Counsel deems any written and sworn complaint against a member not to state an ethical violation and it is not suitable for alternative disposition, it may decline, without investigation, to entertain it.

(4) Neither the Association, the Board, the Director, the Inquiry Commission, the Trial Commission, the Office of Bar Counsel, nor their officers, employees, agents, delegates or members shall be liable, to any person or entity initiating a complaint or investigation, or to any member of the bar or any other person or entity being charged or investigated by, or at the direction of, the Inquiry Commission, for any damages incident to such investigation or any complaint, charge, prosecution, proceeding or trial.


HISTORY: Amended by Order 2013-12, eff. 1-1-14; prior amendments eff. 2-1-08 (Order 2007-007), 4-1-07 (Order 2007-01), 1-1-06 (Order 2005-10), 10-1-98 (Order 98-1), 1-13-86 (Order 86-1), 7-1-79, 1-1-78, 7-2-71

Note: Former Rules of Appellate Procedure (RAP) were amended and redesignated as Rules of the Supreme Court (SCR) by Order of the Supreme Court effective January 1, 1978. Prior Rules of the Court of Appeals (RCA) had been redesignated as Rules of Appellate Procedure effective March 12, 1976.

Gwen Billingsley

Steve Huddleston has written an outstanding short story about the importance of legal representation for anyone charged with a crime.

Monday, April 14th, 2014

Steve Huddleston, an attorney in Warsaw, Kentucky has written an outstanding short story about the importance of legal representation for anyone charged with a crime. This story should be widely read. Defense attorneys will understand the public reaction they have had when they represented people who were “obviously guilty”. Huddleston may be contacted at (859) 816-4005.

Stan Billingsley
Senior Editor

By: S.P. Huddleston (Copyrighted)

Did you know that venom from reptiles, arachnids and marine life may hold the cure for heart disease and diabetes, even autoimmune diseases and cancer? This isn’t new. Venom-based cures are mentioned in the Sanskrit from the second century. Under the sea there is a creature called a stonefish which is nearly impossible to see. This poses grave danger because if the venom from its dorsal spines doesn’t kill you, the pain will be so intense you’re likely to beg for the amputation of the affected limb.
I didn’t know any of this stuff. Not, that is, until I found myself flipping through a National Geographic magazine in the waiting room of Labon Hodge’s office.
It struck me as odd I’d never before been there. Hodge’s office was on the second floor, above a savings and loan association. I owned the pharmacy straight across the courthouse square only yards away.
Hodge, of course, would know why I was there, as would all others in the office or elsewhere. It had been splashed all over the local papers.
So, fate had compelled me to make the short walk across the square from my drug store to Hodge’s office. And yet, while the distance was short, the trip had been long. I had come from afar. My journey began about a year ago.

I am at my drug store’s lunch counter taking my morning coffee with a few pals, as was our custom.
“Well look, there,” somebody said.
Past our window a tall, skinny man in a rumpled scotch-plaid suit which was too big for him, strode toward the courthouse with several manila folders under his arm. The collars of his white shirt could have used a clasp.
“There’s a man, I don’t know how he lives with himself,” one of my mates said.
Said another, “What do you reckon he sees in the mirror?”
The talk continued. “I heard he’s going to appeal.”
“Appeal what? Just a waste of taxpayer money.”
As others chattered, I said nothing, but was thinking along the same general lines.
Labon Hodge was a familiar figure on the courthouse square. He had practiced law in our town for decades.
Even so, he was not so well known as one might expect. He seemed a quiet man by nature and mostly kept to himself.
I knew him a little. He had handled my deceased partner’s estate. We had a buy-sell agreement requiring me to buy his widow out of the business. I felt Hodge handled the matter efficiently and with tact. Professionally, I’d say.
Occasionally Hodge showed up at our church. As a deacon, I took up the collection. Sometimes Hodge didn’t fold his checks very well and I couldn’t help but notice his donations were on the large side, as if to make up for his frequent absences.
I knew Hodge had three children and at least two ex-wives. Of the children I was sure as they were in school with my own kids. As to the ex-wives, I wasn’t certain but that was of no consequence to me. I had marital problems of my own more than enough to keep me occupied.
A year earlier our community had suffered a terrible tragedy. A local hardware store was destroyed in a spectacular blaze fueled in part by the paint and other chemical solutions housed there.
It was arson and everyone knew who did it. Jackie Jones was a mean and dishonest man who seemed to relish going out of his way to foster the enmity of others. He was found hours after the fire unconscious in his own front yard reeking of whiskey and gasoline, his hair singed and eyebrows lost to the heat.
At least two witnesses stepped quickly forward to avow that Jones had sworn vengeance against the hardware store owner for suing him to collect his delinquent account and thereafter garnishing his wages.
That was bad enough, but there is more to it. A single mother and her two young children lived in the apartment above the hardware store and were incinerated. It is said the little seven-year-old girl had shown signs of musical genius.
So it was murder. And it was murder by a despised low-life perpetrated for no good reason. Hodge defended Jones. That was his offense.
Of course it didn’t help. After nearly a year of what seemed to the community to be pointless legal wrangling and unnecessary delays a jury convicted Jones and sentenced him to life in prison without the possibility of parole.
To most, including me, this result had been inevitable and the whole process of getting there a waste of tax money which served only to prolong the agony and grief.
So, while my general impression of Hodge was favorable, I had to wonder about him. A man with children of his own working so hard for the murderer of innocent children – it was hard to figure.
I referred to my marital problems in passing. Alas, neither you nor I can get off that easily. To tell this story, I’m afraid it can’t be avoided.
Let’s start with the crux of the matter and work back. I had a fling and I got caught. The ramifications of the latter fact still bedevil me. Indeed, it is the reason I am sitting in Labon Hodge’s waiting room reading about scorpions, sea snakes and mambas.
If you know the circumstances, perhaps you will grant me a little understanding.
Everything started with a tree struck by lightning. This tree happened to be in my business partner’s back yard. My partner became disturbed to the point of obsession. He convinced himself of the impending death of his entire family as the stricken tree crashed through the roof of his house in the wee hours of the morning.
I went to see for myself. I assured my partner that his fear was unlikely to materialize during the lifetime of any person now living, for it was a sturdy tulip poplar which, while injured by the lightning, was far from dead.
It was not enough. Partner decided that it must come down. As he was notoriously scotch with money, he determined to fell it himself, which he did. Sadly, the tree fell on top of him, as did the chainsaw, and well, you get the picture.
Apart from the genuine grief I suffered at the loss of my dear, old friend, his untimely demise had a profound effect on my workload. You can’t operate a pharmacy legally without the physical presence of a licensed pharmacist at all times. So I was pulling double-duty, seven days a week.
My wife was unhappy with this and became shrewish. The workplace was the source of my problems, yet at the same time it became my haven to which I escaped from the friction at home.
I was aided by our able and long-time assistant who agreed to work extra hours until I could locate a retired pharmacist looking for part-time work. This was unlikely to happen easily or quickly as our town was not large and the national chain stores were soaking up available personnel.
The assistant was both helpful and cheerful. She knew the business and its customers well, and was thus a huge asset. To have lost her would have been a grievous blow at any time, more so now than ever. Working into the night together and under pressure, we became closer.
While hardly a raving beauty, she was shapely in a way that attracted me. I gathered she liked me as well. One thing led to another.
You don’t need the details. We’re all grown-ups here. You know what happened.
I probably shouldn’t say it (although at this juncture it hardly matters), but I enjoyed our arrangement. It kept me going, really.
They say nothing lasts forever, and this didn’t. As I said, we got caught.
My wife took this as license to have flings of her own, which by now is the least of my worries.
We were caught by my assistant’s husband. Did I mention my assistant was married to the Chief of Police? Yeah, well, you can see that this is not likely to go well for me.
It happened like this, according to Chief John Hampton. He was making the usual nightly rounds checking on the security of local businesses, as a diligent public servant should. At my drug store he saw a light from within and found the back door, which should have been locked that hour, open. I am yet unconvinced that he didn’t have a key. In any event, he entered to check out the situation. The situation was that my assistant and I were in pari delicto. (I have since had reason to look up certain legal terms and stumbled across that one. If you know what it means, you will understand why it has stuck with me.)
Of course I had to fire her. My wife insisted. So now she hates me, too.
Some months later I was awakened at 3:00 a.m. by the pharmacy’s burglar alarm which was wired into my home. I noticed my wife was not in her place beside me, but I had no time to fret about that. I rushed downtown.
I got there first for some reason. The front door of the store was locked. I fumbled with the keys, but finally opened it and ran to the back of the store where the pharmacy was located. As you would know, the opiates and ephedrines were rifled. The burglars had somehow cracked the safe in which they were stored.
Chief John Hampton arrived and began looking around and making notes. The burglars had entered from a back window they had cut through with some sort of knife.
As you might expect, it was no fun for me to be in the same room with John Hampton under any circumstances. But I was befogged and numb and most of the tension was lost on me.
After an hour or so, I am sitting on a stool trying to grasp what all this will mean, when Hampton approaches me.
“It looks like an inside job to me,” he says.
For a moment I am unresponsive. Then the light comes on, “What!”
“You heard me,” Hampton says.
Now I am incredulous. “John,” I say, “I know we have our differences, but you know damn well I didn’t have anything to do with this.”
A strikingly unfriendly smile spread across Hampton’s face. “I don’t know and I don’t care,” he said.
In the days that followed my business dropped off. Only slightly, but noticeably.
Circulating rumors began getting back to me.
“I heard Henry Matthews has financial trouble.”
“Did you hear Matthews’ wife is divorcing him?”
“Did you know Matthews’ nephew is part of a drug cartel?”
It was maddening, but I’d lived in this town all my life and had been through the rumor mill before. It would pass if I kept my mouth shut, which I did. Next month they’d be talking about someone else.
I took comfort in one irrefutable fact. I was 47 years old and had never once been in legal trouble. My record was squeaky clean. My fellow townspeople knew me to be an honest, hard-working and law-abiding citizen. This couldn’t be taken from me.
You might imagine then how I felt when I opened my morning paper some time later only to be greeted with the headline; “LOCAL DRUGGIST INDICTED IN DRUG
THEFT.” I say “imagine” because you can’t begin to know how I felt unless its happened to you.
That afternoon John Hampton marched into my store bearing his most serious mien and ceremoniously handed me a summons, making sure all my customers noticed in the process. I snatched it from his hand and tried to stare him down, but he quickly turned away and departed.
Now I was angry. This had gone way too far. Who did these people think they were anyway? I was a respected citizen. A good man. Past president of the Rotary Club and The Founder’s Day Festival.
Sure, my finances had deteriorated some lately. A new chain pharmacy on the outskirts of town had siphoned off some business. And my wife, who did not like me much but wasn’t divorcing me, yet, had quit her job with the school system in a pique of indignation, which I suspect was actually meant to spite me. That didn’t help the household finances.
Hampton would have discovered this, as his sister-in-law worked at the bank. But I was far from insolvent. My balance sheet was still better than most.
And, yes, my 19 year old nephew had got himself hooked on pain pills hanging out with the wrong crowd. But he was away doing in-patient rehab, and his punk friends were hardly a cartel. Hell, they probably couldn’t even spell cartel.
So, come on now. This whole thing was an outrage. I was fairly chomping at the bit to go to court and give them all a piece of my mind.
I began to give some thought to the legal system and its processes, about which I knew nothing. Until then I had paid little attention. I only knew that it was confusing, unpredictable and seemed to produce non-sensical results. And it was expensive. A thing to be avoided.
My experience with the regulation of my own industry was more than enough law stuff for me.
Now, though, it seemed to make sense for me to give it some thought.
So when I noticed Labon Hodge sitting on the sidewalk bench next to my store, eating a sandwich for lunch, I walked outside and sat beside him.
“How you doing, Hodge,” I asked.
“Very well, thank you,” he answered. “And you, Henry?”
“I’ve been better,” I said.
“Yes, I see you’re in a tough spot,” Hodge said.
“Oh, I’m not worried about that. I’m mad, yes, but not worried. It’s just a bunch of trumped up bull. Everybody with any sense knows it,” I said.
“I’m sure that’s right,” Hodge said.
I said, “I’ve got nothing to worry about because I’m innocent.”
“Of course you are,” said Hodge, a slight smile forming on his lips.
“I mean it,” I snapped. “I’m not guilty.”
“I mean it, too,” said Hodge. “You are in the United States of America. Here you are innocent unless and until the government proves you guilty beyond a reasonable doubt. So, that having not occurred, you most certainly sit before me as an innocent man.”
“I wish other people knew that,” I said.
Hodge said, “I know it and the legal system knows it.”
I studied Hodge closely. I believed him to be about 55, but he looked older. He seemed little concerned with his appearance. The tie-knot crooked, shirt gaping above the belt, shoes unshined, one sock drooping about his ankle.
“Well, I don’t want to talk about all that right now,” I said.
“Probably a good idea,” Hodge responded.
I asked, “May I ask you a question, though?”
“You may,” answered Hodge, “although I may choose not to answer.”
“Fair enough,” I said. “How can you defend a man you know is guilty of a terrible crime?”
“A man like Jackie Jones,” Hodge asked.
I said, “Yeah, like Jackie Jones.”
Hodge smiled. “I didn’t know him to be guilty,” he said.
“Everybody knew he was guilty,” I said.
“Did you know he was guilty, Henry?”
“Of course,” I said. “Everybody did.”
“How did you know he was guilty, Henry?”
“He had the revenge motive. He told people he was going to do it. He was found nearly half burned up and smelling of gasoline. And everything else,” I answered.
“Besides,” I continued, “Jones is just like that. He is a worthless creep. They say he burned down old Joe Ramsey’s barn a few years ago.”
Hodge began. “Henry, did you see Jones lying in his yard singed and reeking.”
“No,” I say, “but the police did.”
Hodge says, “If you didn’t see it yourself, how do you know what the police found?”
“Because they said so,” I say.
“How do you know they weren’t lying?” Hodge asked.
“I don’t think they’d lie about something like that. And, anyway, I saw the photos in the newspaper,” I countered.
Said Hodge, “I don’t expect they’d lie either. Not as a whole, but what about one out of a thousand? And do you think the chances of lying would be greater if they knew no one would double-check the story?”
Hodge went on, “How do you know the photos weren’t staged, or faked, or taken at some other time? How do you know Jones swore revenge?”
“Well, I don’t know, but more than one person said they heard him,” I say.
Hodge said, “Maybe they lied. As you pointed out, Jones is a creep. Many dislike him. I dare say hate him. Perhaps for good reason.”
He went on. “As for all the other evidence, did you observe or analyze any of it? And back to lying, maybe no witness lied, maybe they were just wrong. Do you think it possible you might have arrived at different conclusions if confronted with the same set of circumstances as the police?”
“Not in this case,” I responded.
“In any case,” Hodge rejoined.
I was eager to turn this conversation around. “Look Hodge,” I say, “don’t you believe Jones was found just like they said?”
“Yes, I believe so,” Hodge answered.
Feeling vindicated, I continued, “Don’t you believe he threatened vengeance?”
“Yes, I believe that, too,” Hodge answered.
I pounced. “Are you saying you don’t believe he is guilty?”
Hodge answered. “I am certain now that he is guilty because a jury of his peers has unanimously found him guilty beyond a reasonable doubt. As to what I believe, yes, I believe he committed the crime charged.”
“Then what are we arguing about?” I wasn’t sure what had just happened.
“We’re not arguing,” Hodge said. “I get paid to argue. I don’t like to do it on my own time. If we were arguing you’d know it.”
Somehow, after all of this, a flicker of cogency danced in my brain. “Hodge,” I say, “You’re very clever at shifting the subject, but my original question concerned how you can defend a man like Jones.”
Hodge rubbed his chin. He hesitated, then began. “Let me try this. As both a taxpayer and citizen, you, Henry, are responsible for the judicial system which is operated by our society. Do you want to support a system that imprisons innocent people?”
“Of course not,” I snap, “but Jones wasn’t innocent.”
“We know that now,” Hodge says. “But how could we know it if the state’s case against him wasn’t put to an honest test? What do you suppose would happen if the criminally accused were not afforded a vigorous defense?”
“The taxpayers would probably save a lot of money,” I retort,
Hodge smiles. “Perhaps, but it is very expensive to incarcerate a man. To imprison an innocent man is a monumental waste, in every respect. Henry, the legal system is based on logic. Indeed, it may fairly be termed entirely logic. Everything we practice is designed to ensure a fair trial. Not a perfect one, mind you. We’re mere mortals and cannot ensure perfection, although we strive for it. What we can ensure is fairness. And yet, with all that is done toward that purpose, innocent men still get convicted.”
“One thing I know would happen if defendants didn’t receive honest defenses is that Henry Matthews could not sleep at night with the confidence that the system of laws he supports strives to do its dead level best to ensure that our government does not deprive innocent men of liberty, the most precious of all rights.”
“I suppose your’re right,” I say. “Still, in a case like Jones’ the system seems a ponderous thing, making it unnecessarily difficult to reach an obvious result.”
“It is only obvious now,” Hodge says. “Henry, here’s the difference in our thinking. You came to your conclusion on the basis of what other people told you. It was an easy conclusion, as it comported with that of everyone you knew.”
“I have come to the same conclusion, but only after testing, probing and questioning all of the evidence. Only after the state was required to openly, and in a manner consistent with legal rules guaranteeing fairness, display its evidence and expose it to the test of question, skepticism and counter-evidence. I have formed my conclusions only after being shown that the evidence against Jones was reliable, sensible, relevant and material to the issue and true.”
“I believe Jones was found as claimed because I’ve questioned the witnesses under oath, viewed the photos, visited the scene, reviewed the forensic evidence and interrogated the scientists who performed the tests. The same for all else I’ve said I believe. If it had not been proven to me, I would have drawn no such conclusions.”
“Well,” I say, “you’re a lawyer. That’s your job. I’m just relying on my common sense.”
“Yes, and you have good sense, Henry. Well, I must get back to the office. Good to see you, Henry. I do have one question for you before I go.”
“Shoot,” I say, then added, “but I might not answer.”
Hodge chuckled and asked, “If no one stood between an accused and his prosecutors, putting up the strongest defense possible in his behalf, what would prevent the state from running amok? What would stop it from falsifying charges against, and imprisoning, innocent people at will, just because it wanted to for some reason?”
I had heard enough. “I have to think about that,” I said and rose.
We parted.
The day of my court appearance arrived at last. I was ready early, but contained my eagerness until I had just enough time to arrive as scheduled. Then I walked out of the front door of my store and across the street to the courthouse with head held high. I hadn’t wanted to arrive early, so as to seem over-anxious or insecure. They could wait on me if need be.
As it turned out, I was hardly noticed and was forced to wait anyway, other court business being in process. I sat quietly alone, and watched and listened.
I can now confess nervousness. The place, proceedings and language employed were all strange to me. I was a minute away from my old, familiar second home, my pharmacy, and yet I felt like a stranger, even among people I knew and in the seat of my own local government. My palms began to sweat as nausea roiled my guts. Still, I was able to maintain calm on the outside.
I found one saving grace. I was to stand before Judge Mary Cee Strawn. I had known Strawn since childhood. We started kindergarten together. Her husband was one of my steady customers. No, I can’t tell you why. My son even dated Mary Lee’s daughter for a while. A big mistake by my son to let her get away. She was an outstanding young lady in every respect. She had gone to the city and become a successful business executive last I heard. My son has a stubborn streak, believe it or not. Sometimes he doesn’t know what’s good for himself.
By watching, I noticed Mary Cee was calm and polite in her demeanor. She spoke matter-of-factly, but was not brusque. This helped set me at ease some.
When my name was finally called, I suddenly went from unnoticed to very much noticed. The courtroom fell deathly silent for the first time since I’d come in.
As I approached the Judge, I sensed every eye in the courtroom upon me. I stared straight ahead, feeling as if I were an alien being just dropped in from the sky.
I stood at a podium, microphone in my face. “State your name, address and date of birth,” the Judge commanded, which seemed senseless as everybody knew who I was and why I was there. I managed to comply with the order without falter, although it was harder than I could have imagined.
Then from the Judge, “Henry, do you understand the nature of the charges against you?”
“I understand them well enough,” I said, “but I don’t understand why I’ve been charged.”
“Do you have an attorney,” the Judge asked.
“No,” I answered, “I don’t need a lawyer. This is a bunch of nonsense. I could call it something else, but I won’t here.”
The Judge looked at me silently for a moment. She then removed her spectacles and leaned forward slightly. She spoke looking directly into my eyes. “Henry, you need an attorney.”
“What on earth for?” I went on, “Mary Cee, you darn well know I didn’t have anything to do with that break-in.” And with a sweep of my arm, “We all know what this is all about.”
The Judge said, “Don’t say any more Henry. Listen to me closely. Henry, you have spent many years in business. You are expert in your business. From what I’ve seen, I believe you have been successful in your chosen field. Until recently you were blessed with an able partner. The two of you made a good team. And, by the way, I am sorry about his death. He was a fine man. But my point is, you are about to enter into a field about which you have little or no understanding, and, to your credit perhaps, absolutely no experience. I would never presume to go to your store and mix medicines. You can’t come into this place and expect to perform as you can behind the pharmacy counter. In this field of endeavor, just as in your chosen field, you need a partner. A skilled and experienced partner who can protect and promote your interests.”
“Why,” I said, “I haven’t done anything wrong?”
The Judge replaced her glasses, looked down and rapidly wrote something. She then looked up at me and said, “I’ve entered your plea of not guilty. Henry, be back here in four weeks with your lawyer.”
That was that. I adopted a sullen countenance, turned and walked out.
I liked Mary Cee Strawn. We had even dated some in high school.
I had to believe she meant well. Even so, I don’t like being told what to do. I still could not accept that a fellow needed a lawyer when he’d done nothing wrong. Well, at least nothing criminal. Besides, lawyers were expensive, I was given to understand. By this time my income stream was but a trickle and my expenses had not diminished accordingly, if at all. This damnable travesty was going to break me if I let it.
I didn’t know what to do, really. I wrestled with it for days. I didn’t want to hire a lawyer. That would only make me look guilty, I told myself. Yet I couldn’t just dismiss Mary Cee’s advice. A nagging thought in the back of my mind insisted that she had been trying to tell me something.
Though it might be good advice, I was loathe to take it. Once, for a few fleeting moments, I even considered absconding to Surinam. I really hated myself for that and got drunk in self-disgust. I hate to admit it, but by this point I was a mess and in over my head.
Last night I had a dream. I could call it a nightmare for it was the most frightening experience of my life, which says something, as you know if you’ve read this story. But I won’t call it a nightmare for it may save my life. At least I hope so.
In most of my bad dreams I can sense that I’m only dreaming and that the horrifying events are but conjured up by my imagination. This sense that the images are not real comforts me as the dream-story plays out. In most of the scarier ones, when my innate sense of the real and surreal fails, I manage to awaken myself before the imminent catastrophe occurs. This one was unlike any in my experience.
I was struggling to reach the courthouse but could barely move, as if walking in wet cement. I was fearful and running late. I had a vague notion that I was in trouble, but didn’t know why exactly. Whenever I began to make progress, I realized I had forgotten something. A book, a document, an article of clothing, and back to the drug store I trudged. I begged for help from everyone I saw. All looked away. Some said, “I can’t help you, it’s against the law.” I knew some of the people and called them by name, yet no one dared help. “You’re trying to get me in trouble,” one said.
At long last I reached the courtroom. There, clerks scurried around ignoring me. None would speak with me. Finally I screamed, “I am Henry Matthews. I am here to prove my innocence.”
“Hmm, Henry Matthews you say,” one woman responded. “Have you identification?”
I reached for my wallet but it was missing. “No,” I said, “I must have left it at the store. But you know me. I’m Henry Matthews. I own the drug store across the street.”
“Well, this is highly irregular, but let me check,” said the woman. She began thumbing through a stack of papers. “Oh yes, Henry Matthews. Here you are,” she said. “You are supposed to be here tomorrow. Come back tomorrow.” She went back to her business.
“But wait,” I said. “I have the summons right here.” But I didn’t have it. I had a handful of papers of all kind, except the right one.
I somehow managed to return to the pharmacy where I tried to sleep on a cot in the storage room.
Sleep was denied me. A chanting crowd outside kept me unsettled. Finally, I went to the front door of the store and peered out. A mob of folks seemed to be gathered about a bonfire on the courthouse lawn. I couldn’t make out the words of their chant. I opened the door to listen. I heard but could not understand. They seemed to be speaking a foreign language.
I grabbed the arm of a man walking by in the direction of the bonfire. “What is going on,” I asked.
He answered, “We are standing guard over a man named Matthews so that he doesn’t escape. No one knows him, but he is to be hanged soon on the courthouse lawn, in front of the whole town.”
Next, I was again plodding to the courthouse in wet cement. I was making better progress this time for I was very determined and cared not whether I carried all necessary items.
In the courtroom I encountered the same scene as before. I made the same announcement as before. The same clerk leafed through the pile of papers.
“Henry Matthews,” she said. “Oh yes, you were supposed to be here yesterday.”
“I was here yesterday,” I screamed. “You told me to come back today. I want to proclaim my innocence.”
“Oh well,” she said, “you can’t do that here anyway. If you want a trial you must go to the bank building across the street and you better hurry because they will all be leaving there soon to come over here.”
“Then I will wait for them here,” I said.
“You can’t do that,” she said.
“Why not,” I ask. “I just want a chance to clear myself.”
She stated, “Like I said, you can’t do that here.” She then returned to stamping documents and would speak to me no more.
Off I slogged to the bank. There I was greeted by a pretty young teller behind a counter-wall. “There you are Henry, you’re late.”
“Where can I prove my innocence”, I asked.
“Oh, I’m afraid it is too late for that. You were found guilty yesterday. You will be hanged tonight on the courthouse lawn. No one stood up for you. No one. Face it Henry, everybody knows you’re guilty.”
I bolted upright in the bed, bathed in sweat, trembling uncontrollably. My wife stirred. She had the decency to ask, “Is there anything wrong.”
“Everything, I think,” I answered.
With the dawn I made ready to journey to the office on the courthouse square above the savings and loan association.
And that is how I have come to be sitting in the waiting room of Labon Hodge’s office educating myself about the beneficial effects of deadly venom.

Two years have passed and I am now one of those semi-retired pharmacists working part-time at a national chain drug store, having been forced to sell my business to stave off bankruptcy.
My wife finally got around to divorcing me and I now live alone in a sub-leased condo.
But I am a free man, thanks to the hard work and honest efforts of Labon Hodge. Freedom transcends all else. People, money, things, prestige, relationships and all else are temporal. Freedom is eternal. Without freedom, all else is worthless. Take it from one who nearly lost his and likely would have but for a partner I didn’t even know I had.
Next month, former Chief of Police John Hampton faces trial for framing me, thanks again to the efforts of Hodge.
I use the word “imagine” often as I have embraced the conviction that none of us “know” much of anything.
My youngest daughter will graduate college early at year’s end. She tells me she plans to enter law school. I am well-pleased with her.