Archive for May, 2014

SCOKY Questions Jeff. Co.’s Jury Selection Process, But Holds (Under Palpable Error Review Standard) It Was Not Reversible Error

Wednesday, May 7th, 2014

By David Kramer | dkramer@dbllaw.com May 7, 2014
In Oro-Jimenez v. Com., 412 S.W.3d 174 (Ky. 2013), the Kentucky Supreme Court considered a challenge in a criminal case to the voir dire process used in jury selection in Jefferson County. The Court described that process as involving questioning of the entire gallery of potential jurors summoned for the trial, with each side’s peremptory challenges used against the gallery as a whole, as opposed to a panel of jurors selected from that gallery to be questioned, with peremptory challenges used for that smaller group.
The Court, applying the palpable error review standard since the alleged error was not raised below, noted that the procedure used in Jefferson County did not comply with Kentucky court procedures and rules. However, the Court concluded that the procedure was “not a substantial deviation from the proper method” and did not warrant reversal absent a showing of prejudice. Nevertheless, while the Court determined that the non-compliant process had not prejudiced the defendant in this particular case, the Court noted that in the proper case a defendant could possibly show prejudice from the method employed in Jefferson County. Needless to say, a contrary ruling would have called into question all convictions obtained in Jefferson County criminal cases that had used that non-compliant jury selection method.
Under Kentucky court procedures issued by the Administrative Office of the Courts and under the civil and criminal rules, the number of jurors to be drawn from the gallery during the jury selection process should be the number of the jury (12 in circuit court) plus the number of alternate jurors to be seated plus the total number of peremptory challenges to be exercised. Thus, in a hypothetical civil case in circuit court with two defendants who are entitled to separate peremptories under CR 47.03 and with two alternates to be seated, the number should be 26 — consisting of 12 jurors plus two alternates plus four peremptory strikes for the plaintiff and four peremptories each (for a total of eight) for the two defendants. (In criminal cases, under RCr 9.40 the number of peremptory challenges is eight for each side, plus one if one or more alternates are to be seated.) After the court and counsel conduct voir dire, and after the parties have accepted the panel for cause, the parties then exercise their peremptory challenges simultaneously to only the panel of 26, not to the entire gallery.
It will be interesting to see if the Court’s holding causes the traditional jury selection method used in Jefferson County (also used, the author is told, in the United States District Court for the Western District of Kentucky) that was described in the Oro-Jimenez decision to be changed.
David V. Kramer is a Partner in the law firm of Dressman Benzinger LaVelle, with offices in Cincinnati, Ohio, Crestview Hills, Kentucky, and Louisville, Kentucky

U.S. supreme court will not rule on carrying guns in public

Tuesday, May 6th, 2014

Supreme Court won’t rule on carrying guns in public
Richard Wolf, USA TODAY 11:14 a.m. EDT May 5, 2014
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(Photo: Photo: Douglas C. Pizac, AP)
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New Jersey law enforcement groups defended the state’s requirement that citizens prove a “justifiable need” to carry handguns outside the home, whether openly or concealed from view. In their brief, they claimed the law “qualifies as a presumptively lawful, longstanding regulation that does not burden conduct within the scope of the Second Amendment’s guarantee.”

The state had won two rounds in federal district and appeals courts in the case,Drake v. Jerejian. But another appeals court went the other way in a California case in February, providing the type of circuit split that often leads to Supreme Court intervention.

“Drake presents very strong splits on carrying outside the home and the need for evidence in Second Amendment cases,” Alan Gura, the lawyer for those challenging New Jersey’s law, had said before the court turned down the case.

Ever since Justice Antonin Scalia wrote for a divided Supreme Court in 2008 that the Second Amendment to the Constitution protects the right to possess guns at home, the question of public places has been looming. Many states impose restrictions, such as requiring a demonstrated need to carry a gun, whether concealed or in plain sight. Most lower courts have upheld those restrictions.

Until recently, the most obvious outlier involved an Illinois law that was much more restrictive than those in other states. Its ban on carrying concealed weapons in nearly all circumstances was struck down by a 7th Circuit appeals court panel. Rather than appealing to the Supreme Court, however, the state amended the law to allow for public possession with restrictions.

A ruling in February from a three-judge panel of the 9th Circuit Court of Appeals changed the equation. The majority opinion struck down San Diego County’s restrictions as a violation of Second Amendment rights.

“The Second Amendment does require that the states permit some form of carry for self-defense outside the home,” the panel said. “States may not destroy the right to bear arms in public under the

State Pension funds are being stealthily diverted into high-fee, high-risk “alternative investments” that deliver spectacular rewards for the Wall Street firms– but not such great returns for pensioners and taxpayers

Monday, May 5th, 2014

David Sirota Staff Writer Pandodaily with reference to Chris Tobe’s contribution to this story

David Sirota is a staff writer for PandoDaily, television commentator and nationally syndicated weekly newspaper columnist living in Denver, Colorado. He is the author of the books “Hostile Takeover,” “The Uprising” and “Back to Our Future” and has written for The New York Times Magazine, Harper’s, Wired, Vice, The Nation and Salon.com. He covers the intersection of politics, technology and popular culture.

When you think of the term “public pension fund,” you probably imagine hyper-cautious investment strategies kept in check by no-nonsense fiduciary laws.
But you probably shouldn’t.
An increasing number of those pension funds are being stealthily diverted into high-fee, high-risk “alternative investments” that deliver spectacular rewards for the Wall Street firms paid to manage them – but not such great returns for pensioners and taxpayers.
Citing data from the National Association of State Retirement Administrators, Al Jazeera America recently reported that “the average portion of pension dollars devoted to real estate and alternative investments has more than tripled over the last 12 years, growing from 7 percent to around 22 percent today.” With public pensions now reporting $3 trillion in total assets, that’s up to $660 billion of public money in these high-fee, high-risk investments.
And yet… despite the fact that they deal with the expenditure of taxpayer money, the agreements between public pension systems and alternative investment firms are almost entirely secret.
Until now.
Thanks to confidential documents exclusively obtained by Pando, we can now see some of the language and fee structures in the agreements between the “alternative investment” industry and major public pension funds. Taken together, the documents raise serious questions about whether the government employees, trustees and politicians overseeing major public pension funds are shirking their fiduciary responsibilities under the law when they are cementing “alternative” investment deals.
The documents, which were involved in a recent SEC inquiry into the $14.5 billion Kentucky Retirement Systems (KRS), were handed to us by SEC whistleblower Chris Tobe, an investment consultant and former trustee of the KRS. Tobe has also written a book — “Kentucky Fried Pensions” — about the scandalous state of the Kentucky public pensions system.
The documents provided by Tobe (embedded below) specifically detail Kentucky’s dealings with Blackstone – a giant Wall Street investment firm which has deployed a platoon of registered lobbyists in Kentucky and whose employees are major financial backers of Kentucky U.S. Sen. Mitch McConnell (R).
The Blackstone-related documents, though, don’t just tell a story about public pensions in Kentucky. The firm, which just reported record earnings, does business with states and localities across the country. The Wall Street Journal reports that “about $37 of every $100 of Blackstone’s $111 billion investment pool comes from state and local pension plans.”
In one set of documents provided by Tobe, Blackstone’s payment structure is outlined, with language guaranteeing that Blackstone will receive its hefty annual management fees from the taxpayer – regardless of the fund’s performance.
In other documents, public pension money is exempted from some of the most basic protections usually guaranteed under federal law. Other contract language appears to license Blackstone to engage in financial conflicts of interests that could harm investors.
Despite the documents involving government agencies, and taxpayer money, they are all marked confidential. The public is not allowed to see them.
Tobe says the sheer size of Blackstone – and its attendant ability to set industry standards – means that the documents he obtained represent a story that goes way beyond one state.
“These agreements aren’t unique to Kentucky – they are everywhere,” Tobe told Pando. “They include exactly the kind of risk and boilerplate heads-I-win-tales-you-lose language that is almost certainly standard in the contracts that so many other pension funds have been signing… This is a national problem.”
Blackstone’s “Fund of Funds”: Up to $200M a year in fees and underperformance that can harm taxpayers
One of those documents given to Pando by Tobe is a confidential memo to KRS investment committee members from August 2011. In the memo, KRS staff outlines their desire to invest roughly $400 million in Blackstone’s Alternative Asset Management Fund (BAAM), which is a so-called “fund of hedge funds.”
As documented on page seven of that memo, Blackstone was guaranteed whopping fees of 50 basis points plus 10 percent of any overall profits on retirees’ money. In addition, the memo estimates 1.62 percent management fees and 19.78% incentive fees to be paid on top of the Blackstone fees to the underlying (and undisclosed) individual hedge fund managers in the “fund of funds.”
Pension officials made the decision to invest in the fund despite Blackstone then reportedly being under SEC investigation. According to KRS’s latest annual financial statement, Kentucky now has more than half a billion dollars invested in BAAM.
In 2013, according to KRS data, BAAM earned an 11.54 percent return for the pension system. That was 20 percent below the S&P 500 that year, meaning, Tobe says, that Kentucky taxpayers would have earned $78 million more in an almost fee-less S&P index fund. Those figures are consistent with a recent study from the Maryland Public Policy Institute showing “that state pension systems that pay the most for Wall Street money management get some of the worst investment returns.”
Fees, says Tobe, are a driver of the underperformance. Using the secret memo’s figures, Tobe estimates that 33 percent of that stunning one-year underperformance – or about $25 million – was in the form of fees paid to Blackstone and the other managers in its “fund of funds.”
According to data from the investment research firm Prequin, 20 others public pension funds are also invested in BAAM. Assuming those funds invested in BAAM under roughly the same terms as Kentucky, Tobe estimates that Blackstone and underlying managers in BAAM raked in well over $200 million in fees in 2013 on just that one fund of funds.
Absent from the memo to the trustees are any details about which particular hedge funds are in the BAAM fund. In an interview with Pando, Tobe argues that was by design because, he says, Kentucky officials wanted trustees to vote on the investment without being able to do due diligence. Tobe says that meant trustees were not made aware that BAAM invested in SAC Capital – the firm whose executives recently pled guilty to insider trading charges, and who at the time of the Kentucky investment were already under SEC investigation.
“The crack cocaine of the private equity industry”
Other documents obtained by Pando detail Blackstone’s separate private equity fund, Blackstone Capital Partners V, which the New York Times describes as “the biggest private equity fund in history.” Prequin data show that public pension systems in 24 states have made $6.5 billion worth of investment commitments to this one private equity fund.
According to KRS’s 2013 annual report, the Kentucky pension system has $81.1 million in that and one other Blackstone private equity fund.
One document prepared by the investment consulting firm Strategic Investment Solutions shows that in Capital Partners V, Blackstone is guaranteed management fees of between 1 percent and 1.5 percent, depending on the size of the investment. Attached to that document is another Blackstone document in which the company presents its past track record. In fine print at the end of that second document, the company declares that it does not make “any representation or warranty, express or implied, as to the accuracy or completeness of the information.”
Public pensions are typically bound by the so-called “prudent person rule”. Investopedia explains that this rule, which is enshrined in many state statutes, requires public pensions to avoid “shady, risky, or otherwise poor investments.” The Organization for Economic Cooperation and Development says it operates in the United States to require “that unwarranted risk be avoided” in favor of a “culture of cautious behavior among pension” overseers.
Yet, a document detailing investment contract language for investments in Blackstone Capital Partners V appears to show quite the opposite. Marked “Risk Factors and Potential Conflicts of Interest,” the document outlines major risks for public pensions – the kind of risks that are rarely ever disclosed to the public.
For example, the document shows Blackstone admitting that investing in the fund “involves a high degree of risk”; that “the possibility of partial or total loss of capital will exist”; that “there can be no assurance that any (investor) will receive any distribution”; and an investment “should only be considered by persons who can afford a loss of their entire investment.” Additionally, the document says investments made by the fund could subject investors to “certain additional potential liabilities” and that an investor “may be required to make capital contributions in excess” of what it originally pledged.
Amazingly, while asking public pension trustees to invest money in the fund, the Blackstone document also says that “none of the Partnership’s investments have been identified,” meaning trustees could not even evaluate the underlying investments before they decided to invest retirees’ nest eggs.
In terms of legal protections, the document says investments made by the private equity fund could be illiquid “for a number of years.” In a section marked “absence of regulatory oversight,” the document also says investors “are not afforded the protections of the 1940 (Investment Advisers) Act.” It also says that in the event of litigation brought against the managers of the fund, those costs “would be payable from the assets” of the investors.
Then there are the carve-outs for financial conflicts of interest. One section of the document declares that “Blackstone has long-term relationships with a significant number of corporations and their senior management” and that when making investment decisions, Blackstone “will consider those relationships.” Another section declares that “Blackstone may have conflicting loyalties” between the different funds it operates, and that “actions may be taken for the Other Blackstone Funds that are adverse” to investors.
According to former SEC investigator Ted Siedle, who served as counsel to Tobe during the SEC investigation, the conflict-of-interest section marked “Fees for Services” is particularly problematic. He says it permits private equity managers to assess fees on companies the private equity fund owns, but then not compensate the fund investors (like public pensions) for those fees. This stealth fee-inflating practice, which is attracting SEC scrutiny, has been called the “crack cocaine of the private equity industry.”
An official with the American Federation of Teachers, whose members are relying on pension investments, told Pando that the disclosures of huge fees and potential conflicts of interest may put pension trustees at odds with the law.
“Trustees risk violating their fiduciary duty if they don’t aggressively confront fees and potential conflicts of interest in the investment chain,” said Dan Pedrotty, AFT’s Director of Pensions & Capital Strategies.
More generally, critics of various political stripes say that while the risks outlined in the Blackstone private equity documents may be acceptable for individuals acting with their own money, they may be too perilous for public pensions, especially when a larger and larger portion of those pensions’ portfolios are in such private equity investments.
For instance, citing data from Wilshire Consulting, conservative conservative American Enterprise Institute scholar Andrew Biggs says these kinds of dangers make alternatives “60% riskier than U.S. stocks and more than five times riskier than bonds.” Time Magazine’s Rana Foroohar reports that a recent conference of liberal scholars said the possibility of catastrophic losses mean “pension funds shouldn’t be in high-risk assets” and “should be mainly invested only in no or low fee index funds.” And both the Government Accountability Office and Siedle have raised questions about the risks inherent in private equity’s opacity and illiquidity.
Money, political influence and the alternative investment craze
In recent months, questions have been raised about why pension funds are investing so heavily in high-fee, high-risk alternative investments. For example, a New York Times report recently noted that “a number of retirement systems that have stuck with more traditional investments in stocks and bonds have performed better” than those investing heavily in alternatives. Similarly, Bloomberg News reported that “more than half of about 400 private-equity firms that SEC staff have examined have charged unjustified fees and expenses without notifying investors” of such fees.
Pension analyst Leo Kolivakis says public pensions – read: public employees and taxpayers – are among those facing the biggest downside.
“Despite hedge funds having suffered the worst performance start to the year since 2011, industry assets hit a new peak of $2.7 trillion thanks to healthy net inflows,” he recently wrote. “And who is leading the charge? Who else? Dumb public pension funds getting raped on fees.”
The question, then, is why. When The Economist magazine reports that “the average return of hedge funds has lagged a plain-vanilla portfolio (in) nine of the past ten years,” why are pension funds dumping so much cash into high-fee hedge funds? When none other than Warren Buffett is telling his own trustee to only invest his money in government bonds and cheap index funds, why are public pension officials nonetheless putting retiree money into high risk private equity firms? In short, why have public pension funds been so aggressively moving money into these alternative investments?
One part of the answer may have to do with a misguided effort by pension administrators to bet big on ever-more risky investments in hopes of earning outsized returns and more quickly closing revenue shortfalls. That, though, may be creating more problems. As a 2013 study by the International Monetary Fund showed, severely underfunded pension plans have “increas(ed) their risk exposures” ultimately “exposing them to greater volatility and liquidity risks.”
Tobe says the Kentucky Retirement Systems fits this description. He points out that according to KRS financial statements, Kentucky invests an above-average 34 percent of its assets in “alternatives.” That strategy last year delivered roughly 12 percent returns for KRS – far below the 16 percent median for public pensions. The high fees involved in such “alternatives” may help explain, in part, why a December 2013 KRS presentation (embedded below) shows the pension system is now just 23 percent funded – a rate that Tobe says is one of the worst in America.
That said, another reason why pension funds have moved into risky high-fee investments may have to do with political influence and campaign cash from the Wall Street firms that stand to benefit from the alternative investment craze.
While a spokesperson for Blackstone told Pando “I am not aware of any (Blackstone lobbyists) in Kentucky,” government ethics disclosures show Blackstone and companies Blackstone funds own actually employ 11 lobbyists in the state (when shown the disclosure forms, the spokesperson subsequently insisted that “these are not lobbyists but internal investment professionals who work with our clients on their investment objectives”).
Among the lobbyists is one from Park Hill Group, the Blackstone-owned firm whose website describes it as “a placement agent providing placement fund services for private equity funds, real estate funds, and hedge funds, as well as secondary advisory services.”
As documented by Bloomberg News, placement agents often leverage political connections to convince public pension systems to invest in their clients’ funds. Because pension funds are barred from choosing investments based on such political considerations, the controversial placement business has periodically faced legal scrutiny, with some states and cities moving to crack down on placement agents. But, as evidenced by Kentucky and its relationship with Blackstone, many states still very much permit them. Indeed, according to Forbes, “Park Hill itself received $2.35 million for lining up business in Kentucky – for Blackstone funds.”
Of course, what can supercharge the influence of lobbyists and placement agents is the campaign contributions of their clients. So, for instance, according to data from the Center for Responsive Politics, Blackstone employees are among the largest campaign contributors to Kentucky’s chief political powerbroker, U.S. Senator Mitch McConnell (R).
Some of that money can filter directly the coffers of state parties that specifically run elections for positions involved in pension policy. For example, Blackstone employees are top contributors to a joint fundraising committee “McConnell Victory Kentucky,” which, according to the Louisville Courier-Journal, donates heavily to the Kentucky Republican Party.
The potential relationship between campaign money and pension policy is not limited to Kentucky. As USA Today reported back in 2009: “More than two dozen firms that have surfaced in a broad corruption investigation of public pension funds gave at least $1.97 million in campaign contributions to officials with potential influence over the funds’ investments.”
Blackstone and private equity trade association response
Pando requested comment from the Kentucky Retirement Systems 4 days before publication time, but KRS did not respond. However, representatives of the alternative investment industry did.
In response to the disclosures, Blackstone senior managing director Peter Rose told Pando: “Our funds have produced equity-like returns with bond-like volatility over a market cycle and have protected capital in down equity markets. We are proud of what we have been able to achieve for our investors in over two decades of investing.”
Additionally, the trade association for the private equity industry also responded to the disclosures. Acknowledging that “A majority of private equity investment comes from institutional investors such as public pensions,” Noah Theran of the Private Equity Growth Capital Council told Pando: “Research has consistently shown that private equity is the best performing asset class for pensions over the long-term, but as is the case with any investment, it is not without risk.”
A commitment to secrecy
When Pando asked for specific comment on whether agreements between Wall Street firms and taxpayer-backed public pensions should be available to the public, Rose said: “We are going to decline to comment on this.” Likewise, the Private Equity Growth Capital Council and KRS did not respond to questions about secrecy.
That response – or lack thereof – highlights how public pension transactions with Wall Street remain shrouded in secrecy in states throughout the country. As Susan Webber has written, despite the astronomical sums of taxpayer money and retirement income at stake, “public pension funds routinely turn down requests” for such basic information in hopes of shielding the fee bonanza from scrutiny.
For example, following SEC warnings of fee abuse in private equity investments, the New York state’s Teachers’ Retirement System flatly rejected Reuters’ open-records request for information about its private equity holdings.
In North Carolina, a recent report by Siedle found that thanks to a lack of transparency, “It is virtually impossible for stakeholders to know the answers to questions as fundamental as who is managing (pension) money, what is it invested in and where is it?”
In Rhode Island, the financial industry is a major donor to the election campaigns of State Treasurer Gina Raimondo (D), who has used her power to move more pension money into high-fee alternative investments. Many of those investments subsequently underperformed and hurt pension earnings, all while generating big Wall Street fees. When transparency and good-government groups asked for the full details of the alternative investments in question, Raimondo refused.
Meanwhile, when Pando requested details of the New Jersey state pension fund’s investment in a firm that is financially connected to the fund’s investment chief, the state government refused the request.
In Kentucky, the secrecy surrounding the pension fund has prompted Tobe to work with State Rep. Jim Wayne (D) on legislation proposing to crack down on placement agents, and to mandate the public disclosure of contracts between Wall Street firms and the pension system. Though Wayne is a Democrat, the bill was praised by the state’s major conservative think tank. And though the proposal was ultimately killed, Wayne says it provides a template for other states.
“This is a national problem and there’s just such a huge amount of money involved,” he told Pando. “Billions and billions of dollars are swirling around in these retirement systems, and there are people interested in capturing big shares of this money as they advise and direct how this money is invested. Clearly, there is a trust issue here with employees and pensioners. They have to trust that the system is being honest with them because their livelihoods are at stake. But they can’t trust a system that isn’t transparent.”
Documents provided to Pando by Chris Tobe:

Praise, concern for Pennsylvania’s High Court’s warrantless automobile search ruling

Sunday, May 4th, 2014

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BY BOB KALINOWSKI (STAFF WRITER)
Published: May 4, 2014

Local police and prosecutors are hailing last week’s Pennsylvania Supreme Court ruling that says cops no longer need a warrant to search vehicles if they have probable cause that evidence or contraband is located inside.
Defense attorneys see the ruling as an erosion of rights and a chance for police officers to abuse their discretion during traffic stops.
The 4-2 ruling by the state’s high court brings Pennsylvania law in line with a federal motor vehicle exception, which has allowed warrantless searches of vehicles since a 1925 Supreme Court ruling, Luzerne County First Assistant District Attorney Sam Sanguedolce said.
Pennsylvania had opted not to follow the ruling because states are allowed to have greater constitutional protections than federal law calls for, he said.
Sanguedolce said the change in Pennsylvania will aid law enforcement, but is not an erosion of rights for defendants because they still can challenge whether a police officer had probable cause after the search takes place.
“It’s absolutely going to help. I spoke to some narcotics officers who are very happy with the decision because it makes it easier for them to find contraband in vehicles,” Sanguedolce said.
The new standard will save a lot of valuable time, Sanguedolce said. Currently, police have to secure a vehicle, type up a search warrant, find the on-duty district judge, get the warrant signed and then execute the search, he said.
“You have to spend an exceptional amount of time to secure a vehicle and obtain a search warrant,” Sanguedolce said.
Kingston police Chief Michael Krzywicki is glad to see the change.
“Obviously, it’s very beneficial to us, as long as we act within the scope of our duties and it’s not abused,” Krzywicki said. “I don’t see any department going out there and stopping every vehicle and searching every vehicle.”
The chief said officers are instructed on the standard of probable cause and as long as their discretion is not abused, the change will save a lot of time and be an asset to police.
“When you look at the scope of the crime going on, this is another tool in our favor,” Krzywicki said.
Those who may one day represent the suspects arrested as a result of the searches dislike the change.
“Is it that difficult to get a warrant?” asked attorney Tom Marsilio, a former prosecutor who is now a defense attorney. “They had to jump through some extra hoops. But the question now is, are constitutional rights not being protecting by shortcutting some steps to allow a search?”
Marsilio also sees the ruling as a possible slippery slope.
“From a defense standpoint, I have to ask the question: What’s next?” Marsilio said.
Fellow defense attorney Allyson Kacmarski, also a former prosecutor, said the change now takes trained prosecutors out of the equation in searches and allows police the sole discretion.
“When they had to get a search warrant, probable cause was reviewed by one of the attorneys, so there was another level of review,” she said. “Taking the warrant out takes out the step of an attorney reviewing it to see if there is probable cause.”
bkalinowski@citizensvoice.com

Secretary of State: New Kentucky Voter Registration Record Set as May 20 Primary Approaches

Saturday, May 3rd, 2014

Press Release Date: Thursday, May 01, 2014
Contact Information: Lynn Sowards Zellen, lynn.zellen@ky.gov
Bradford Queen, bradford.queen@ky.gov
(502) 564-3490

More Kentuckians than ever will appear on voter rolls in the Primary Election on May 20. Secretary of State Alison Lundergan Grimes announced today that the total number of registered voters – 3,105,349 – beats the previous record of 3,037,153, set during the 2012 General Election. The difference is an increase of more than 68,000 voters, or 2.2%, over 18 months.

“I am excited to see that more and more Kentuckians are answering the call to register to vote. I hope the increase in registration translates to greater turnout for the May 20 Primary Election,” said Grimes, Kentucky’s chief election official.

Each of the political parties has seen an increase in registered voters since the November 2012 General Election. Democrats have added 6,811 voters, growing 0.41% from 1,665,853 to 1,672,664. Republicans have grown their ranks by 3.90%, or 44,852 voters, from 1,151,331 to 1,196,183.

The number of voters registering as “Other” continues to trend upward. “Other” registration has increased by 16,530 voters, or 7.51%, from 219,969 to 236,499 since the 2012 General Election, after growing more than 13% between the 2010 and 2012 General Elections. In comparison, “Other” registration grew about 1.6% between the General Elections of 2008 and 2010.

The electorate is comprised of approximately 53% women and 47% men, which is consistent with recent years. Democrats now make up 53.86% of Kentucky voters while 38.52% are Republicans. 7.62% of voters are identified as “Other.” For Democrats, the figures represent a decrease in percentage of voters since November 2012, with a change of -0.99%; Republicans and “Other” increased their relative representation by 0.61% and 0.37%, respectively.

“Now that the registration books are closed, I hope as many Kentuckians as are registered will exercise their right and responsibility to vote in our Primary Election,” said Grimes. “The Commonwealth provides various methods for its citizens to vote, including going to the polls on May 20, voting in county clerks’ offices before Election Day, or casting a mail-in absentee ballot.”

Voters may access the Voter Information Center (VIC) on the State Board of Elections’ website to confirm their voter registration status, view sample ballots, and locate their polling place. For complete registration statistics, additional election information, or to access the VIC, visit elect.ky.gov.

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Law Day forum: Should Alabama change the way it picks judges?

Saturday, May 3rd, 2014

Kent Faulk | kfaulk@al.com By Kent Faulk | kfaulk@al.com

on May 02, 2014 at 5:15 PM, updated May 02, 2014 at 5:16 PM

BIRMINGHAM, Alabama – Former Alabama Supreme Court Chief Justice Sue Bell Cobb says it is time to change the way state judges are selected because “obscene amounts of money” spent on Alabama judicial races have hurt the public’s perception of courts and respect for the rule of law.

Former Chief Justice Charles R. “Chuck” Malone, who now serves as a circuit court judge in Tuscaloosa County, and 11th U.S. Circuit Court of Appeals Judge Bill Pryor said they believe the current two-party system for electing judges works.

“I can’t say it’s a system that’s perfect,” Malone added.

Retired Associate Alabama Supreme Court Justice Tom Woodall said the system has worked, for the most part, but because of the fundraising now required and other factors it has the potential to discourage qualified candidates from running.

Woodall said no matter what alternatives might be considered for selecting judges – particularly appointment processes used in other states – it isn’t likely to happen in Alabama. “People are not going to give up their right to vote,” he said.

Cobb, Pryor, Malone and Woodall on Thursday talked about the way Alabama voters pick judges during a Birmingham Bar Association Law Day forum held at the Tutwiler Hotel. Alabama is one of a dwindling number of states where judges run in party-affiliated races.

The judges discussed various methods for picking judges, including non-partisan (no party affiliation) elections and merit appointment and retention systems used in other states.

State Bar President Anthony Joseph asked the panel questions during Thursday’s “Judicial Selection in Alabama” forum at the Tutwiler Hotel. Jefferson County District Attorney Brandon K. Falls was the emcee for the event.

The discussion at times turned into a debate between Cobb, a Democrat, and Pryor, who was a Republican before being appointed to the federal bench.

Cobb said that she had supported bills in the past to make judicial elections non-partisan. Even though “it’s tilting at windmills,” she said it’s a cause worth tilting at.

Partisan elections have driven up the cost of running for elections, Cobb said. The 2006 Alabama Chief Justice race ranks as one of the costliest judicial elections in U.S. history, she said.

In the 2002, 2004, and 2006 election cycles, Alabama candidates for the state’s supreme court and two appeals courts spent $30 million, Cobb said. That compares to California, a state nearly nine times the population of Alabama, where appointed appeals courts candidates running for retention during those same three election cycles spent a total of $230,000, she said.

Cobb said that a study also shows three-quarters of people campaign contributions can’t be disregarded by judges.

Pryor said that in the end studies show that none of the systems discussed would produce a better bench than any of the others. They all produce roughly the equivalent of the others, he said.

Cobb said that studies showed voters had a higher opinion and trust in the courts system when a merit system was in place.

Pryor jumped back on the microphone and said he wanted to remind folks that there was a time in Alabama when the state was known as “tort hell” because of large multi-million-dollar settlements awarded by Alabama courts.

Cobb shot back that the public’s perception of some of those large lawsuits was not correct. Now, the state’s appeals courts are known for tossing out most large verdicts and lawyers are reluctant to help victims bring lawsuits, she said.

“The pendulum has swung too far the other way,” she said.

Panelists discuss the need for voter education to learn about the candidates instead of voting simply because of their party affiliation.

Pryor disagreed with the idea that voters don’t learn anything about judicial candidates simply because of their party affiliation. Knowing a candidate’s party affiliation does give voters a bit of useful information about where a judge might stand on at least some issues, he said.

The Democratic and Republic parties represent roughly two different philosophies, Pryor said.

For example, Pryor said that the 11th Circuit is made up of judges appointed by different presidents from different parties. In 95 percent or more of the cases before them, the judges generally agree. But in some of the remaining cases there are opinions that fall along party lines, he said.

Woodall said he does not believe there ever could be a truly non-partisan election. Candidates will always be identified with one party or another, he said.

Pryor said with non-partisan elections there would still be judicial candidates with agendas, such as if a judicial candidate had a religious platform, Pryor said, making a thinly-veiled reference to Alabama Chief Justice Roy Moore. Also, he said, money interest would still play a role in non-partisan elections.

Even in an appointed system as with judge, politics get involved, Pryor said. He noted there are 12 seats on the 11th Circuit Court of Appeals, but currently there are four vacancies. Politics have delayed the appointment and U.S. Senate confirmation process, he said.

Pryor said that studies also show that there is lower voter participation when the elections are non-partisan.

During the hour-long panel discussion Cobb also suggested appellate judges be elected by district in order to get black justices on the currently all-white Alabama appellate courts. She also suggested that judicial appointment panels for replacing judges who have retired or died be put in place in all Alabama counties.

Cobb estimated that half of judges in Alabama get their first experience on the bench, not through an election, but through an appointment by the governor to fill a vacancy left by a judge who has died or retired.

So a good way to at least get halfway toward the goal of getting qualified judges on the bench would be creating vacancy appointment process in each county, such as the one set up by the Alabama Legislature for Jefferson County, Cobb said.

In Jefferson County, a committee of judges, lawyers and lay people meet and review candidate applications. Three names are submitted by the committee to the governor. The governor then selects from those candidates the person to fill the vacancy until the next election cycle. Some counties have such panels, but it should be in all counties, Cobb said.

“We want a system people have faith in,” Cobb said.

Law versus politics on the Supreme Court

Friday, May 2nd, 2014

By: Thomas Fu May 1, 2014

To the extent that the American public thinks about the Supreme Court at all, it only seems to do so in the context of the one or two most divisive (and therefore most mass-media-friendly) cases each year. The cases that make it into the public’s eye tend to be highly controversial, both in society and among the justices, and are often framed in partisan terms, with the media often painting the Court as consisting of a liberal wing (Justices Ginsburg, Breyer, Sotomayor, and Kagan—all Democratic appointees), a conservative wing (Chief Justice Roberts along with Justices Scalia, Thomas, and Alito—all Republican appointees), and Justice Kennedy, who acts as the deciding “swing vote.”

Given this popular characterization of the Court, most people are surprised to learn that the vast majority of the Court’s cases are not decided by a 5-4 vote. Last term, for instance, in which the Court decided a number of contentious cases—including, most notably, those involving the constitutionality of Section 5 of the Voting Rights Act (Shelby County v. Holder), the Defense of Marriage Act (Windsor v. United States), California’s Prop. 8 (Hollingsworth v. Perry) and warrantless DNA searches of arrestees (Maryland v. King)—only 29 percent of cases involved a 5-4 split, while a full 49 percent were decided unanimously.

Perhaps even more surprisingly, when the Court does divide 5-4, it often does so along lines that radically depart from the stereotypical liberal-conservative breakdown. Last week, for instance, the Court handed down two 5-4 decisions (some of the first 5-4 decisions of the term) that departed from the “classic” 5-4 breakdown.

The first, Navarette v. California, involved the question of whether the Fourth Amendment permits a police officer to pull a car over for drunk driving when the officer herself did not observe any suspicious behavior, but only received an uncorroborated anonymous tip that the car was driving erratically. Voting to uphold the stop as constitutional, Justice Breyer broke from the Court’s liberal wing and joined Chief Justice Roberts, Justice Thomas, Justice Kennedy and Justice Alito to form a majority siding with the police. Meanwhile, Justice Scalia penned a fiery dissenting opinion, joined by Justices Ginsburg, Sotomayor and Kagan, in which he accused the Court of “serv[ing] up a freedom-destroying cocktail consisting of two parts patent falsity.”

The day after it handed down Navarette, the Court issued its decision in Paroline v. United States, a case asking how much restitution, if any, federal law requires an individual convicted of child pornography to pay to his victim. Again, the Court split 5-4, and again the lineup departed from the ordinary liberal-conservative divide. Justice Kennedy, in an opinion for a majority consisting of himself, Justice Ginsburg, Justice Breyer, Justice Alito and Justice Kagan, held that a child pornography defendant is required to pay for his proportional share of the harm that the victim suffered as a result of the child pornography. Under Justice Kennedy’s rule, the defendant is required to compensate the victim for somewhere between zero percent and 100 percent of the harm suffered, with the precise amount depending on the extent to which the defendant’s conduct caused the victim’s harm.

The four remaining justices all dissented, but for different reasons: Chief Justice Roberts, joined by Justices Scalia and Thomas, read the federal child pornography statute as not entitling victims to any restitution at all, while Justice Sotomayor read that same law as requiring restitution for all damages suffered by the victim, regardless of whether the child pornography defendant caused that harm.

So what’s going on here? Why is a self-described law-and-order conservative like Justice Scalia siding with criminal defendants while Justice Breyer, a Clinton-appointee often described as a moderate liberal, votes in favor of expanded crime-fighting power for the police?

While speculating as to why particular justices cast particular votes in particular cases is always a dangerous proposition, the basic answer is that the justices (both “liberal” and “conservative” ones) do more than simply vote their politics. Indeed, the issues which most often split the Court tend not to be hot-button political questions, but rather seemingly esoteric legal ones.

There is a sharp divide in the Court, for instance, on the question of whether the Constitution’s meaning should remain fixed (a position most often associated with Justices Scalia and Thomas) or whether its meaning should change over time (a position that Justices Alito and Breyer, among others, have expressed sympathy with recently). Similarly, a number of justices have staked out divergent positions on whether it is more important to interpret the law to be coherent and consistent (Justices Scalia and Ginsburg, for example) or to account for the law’s practical consequences (Justices Breyer and Kennedy).

With a number of highly contentious constitutional cases yet to be decided this term (e.g., the constitutionality of legislative prayer, abortion clinic buffer zones, cell phone searches and the Affordable Care Act’s contraceptive mandate)—at least a few of which are likely to depart from the “typical” 5-4 split—this distinction between legal and political questions is worth keeping in mind.

Thomas Fu and David Friedman are the managing editors of the Stanford Law Review. Contact them at thomasfu@stanford.edu and dfriedma@stanford.edu.

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Death Penalty Study: Scalia was wrong; about 1 in 25 people sentenced to death are likely innocent

Friday, May 2nd, 2014

Posted Apr 29, 2014 7:41 AM CDT
By Debra Cassens Weiss

A statistical study concludes that about one in 25 people who are sentenced to death are likely innocent.

The study says only 1.6 percent of those on death-row are exonerated and released, but the actual figure is likely a minimum of 4.1 percent when statistical assumptions are applied to the cases of people who are removed from death row and given life sentences. The study says cases of those removed from death row no longer get the rigorous scrutiny of capital cases, and there would be an increased rate of exonerations if they had remained capital cases.

Death sentences represent less than one-tenth of 1 percent of prison sentences in the United States, but they accounted for about 12 percent of known exonerations of innocent defendants from 1989 to 2012, the study says.

The Associated Press and a press release by the Death Penalty Information Center have news of the study, published in the Proceedings of the National Academy of Sciences. The study’s lead author is University of Michigan law professor Samuel Gross.

“Since 1973, nearly 8,500 defendants have been sentenced to death in the United States, and 138 of them have been exonerated,” Gross said in the press release. “Our study means that more than 200 additional innocent defendants have been sentenced to death in that period. Most of these undiscovered innocent capital defendants have been resentenced to life in prison, and then forgotten.”

AP spoke with statistics experts for their take on the findings. Yale University biostatistics expert Theodore Holford said the study “seems to be a reasonable way to look at these data.” University of South Carolina statistics professor John Grego said it might be better to take the study’s margin of error into account, which would mean the innocence rate is probably between 2.8 percent and 5.2 percent.

The study refutes a statement made by Justice Antonin Scalia in a concurring opinion in 2007. He wrote that American criminal convictions have an error rate of 0.027 percent “or, to put it another way, a success rate of 99.973 percent.”

The study says Scalia’s statement “would be comforting, if true. In fact, the claim is silly. Scalia’s ratio is derived by taking the number of known exonerations at the time, which were limited almost entirely to a small subset of murder and rape cases, using it as a measure of all false convictions (known and unknown), and dividing it by the number of all felony convictions for all crimes, from drug possession and burglary to car theft and income tax evasion.”