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

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

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

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

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

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

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

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

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

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

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

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

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