KBA sets schedule for regional CLE updates this year

February 9th, 2009

KBA Sets Schedule for Law Update CLE meetings this year

September 2-3  (Wednesday/Thursday)
Northern Kentucky Convention Center

September 10-11  (Thursday/Friday)
Lexington Convention Center

September 22-23  (Tuesday/Wednesday)
London Community Center

October 1-2  (Thursday/Friday)
RiverPark Center

October 6-7  (Tuesday/Wednesday)
Ashland Plaza Hotel

October 20-21  (Tuesday/Wednesday)
Jenny Wiley State Resort Park

October 29-30  (Thursday/Friday)
Paducah (Gilbertsville)
Kentucky Dam Village State Resort Park

November 5-6  (Thursday/Friday)
Bowling Green
Holiday Inn & Sloan Convention Center

December 3-4  (Thursday/Friday)
KY International Convention Center

This year our membership will be receiving the 2009 KLU registration brochure in the mail during the month of May.  We would also like everyone to know that when we mail out the registration brochure you will be receiving a follow up email with the link to our online registration form. 

Another idea that we are trying to implement for the upcoming KLU season is the choice between the KLU handbook or the KLU handbook on CD.  On the registration form attendees will have a choice between the two.  Since this is something new for us, we cannot guarantee that members will get their selection, but we will make every attempt to fill their request. 

If you have any questions please feel free to contact me, Shannon Roberts, in the CLE Department at 502.564.3795 ext. 226.  Thank you.

Shannon H. Roberts
Publications & Program Coordinator
Kentucky Bar Association

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Kenton Attorney Martin “Martin” Horwitz dies Feb. 7th. – funerial details

February 9th, 2009

Kenton Attorney Martin “Martin” Horwitz dies Feb. 7th.

February 7, 2009-  Martin J. “Marty” HORWITZ
HORWITZ, Martin Jack, age 57, passed away Feb. 7, 2009, beloved husband of Anna Marie “Ree” Horwitz & the late Vicky Horwitz, devoted father of Allie Horwitz & Zach Pille, dear brother of Jerry & Joanie Horwitz & Lawrence Horwitz, also survived by many nieces & nephews. Services Weil Funeral Home, 8350 Cornell Rd, Cinti, OH 45249, Weds, Feb. 11, 1:00 P.M.

Visitation at the funeral home 10-1 P.M. A private graveside service will be held at the convenience of the family.

Friends may call on the family at the residence of Jerry & Joanie Horwitz Weds & Thurs evenings 7-9 P.M.

In lieu of flowers, memorial contributions to Cinti Museum of Athletics at The Cinti Athletic Club, 111 Shillito Pl., Cinti, OH 45202 or the Vicky Horwitz Memorial Fund at St. Elizabeth Medical Foundation, 1 Medical Village Dr., Edgewood, KY 41017.
Click here for Service Location Information
Click here for Shiva Location Map
Shiva Location Address:
9010 Ambercreek Drive
Amberley Village, OH 45236


230 people exonerated by DNA evidence

February 9th, 2009

Two decades later, DNA evidence has been used to exonerate more than 230 people wrongfully convicted nationwide, including 24 in New York State. The resulting stories of innocent men being freed after decades in prison have captured the public’s imagination and provided fodder for a number of Hollywood dramas. 

But the proliferation of such exonerations, as well as the wider availability of DNA evidence, has also made it harder for prisoners seeking to prove their innocence in the much larger number of cases that do not involve DNA evidence. Many lawyers have grown more reluctant to take on these kinds of cases because they are much harder and more expensive to pursue. 

Legislative leaders amend 2009 session calendar

February 8th, 2009



Kentucky Senate and House leaders today approved changes to the calendar for the General Assembly’s 2009 legislative session. The session is now scheduled to conclude on March 27, three days later than previously planned. 


In addition to observing the Feb. 16 Presidents’ Day holiday by not convening that day, the General Assembly will also not be in session on Feb. 17, 18, 19 and 20, according to the amended calendar. 


The veto recess – the period of time during which lawmakers return to their home districts to wait for potential gubernatorial vetoes – will be held from March 14 to March 25. After the recess, lawmakers will return to the Capitol on March 26 and 27 for the final days of the session. 


A copy of the new 2009 legislative calendar can be viewed here 

Benchmark Litigation ranks lawyers

February 7th, 2009


  See Rankings for : Kentucky

  View other listings at: http://www.benchmarklitigation.com/

The second annual edition of Benchmark Litigation, has been released.  This publication bills itself as  the definitive guide to America’s leading business litigation firms and attorneys.
Benchmark focuses exclusively on the US litigation market, with a research team based in the US conducting extensive face-to-face interviews around the country over a year-long period. It is also the only guide that does not force litigation attorneys into strict practice area categorizations, instead pinpointing the best all-around “bet-the-company” trial attorneys at both the local and national levels.
In an effort to provide the most comprehensive coverage of the US litigation market, we have taken a two-fold approach to our research. In the national section of the guide, we provide an accurate overview of those firms and attorneys most capable of handling complex cases anywhere in the country. To this end, we first highlighted the most consistently recommended “bet-the-company” firms and professionals in eight key business litigation practice areas. We polled leading legal professionals, in-house counsel and business owners in each of these eight areas, in order to determine the nation’s top firms and individuals in each category.
Next, we highlight the absolute top firms in the country across all practice areas. We asked sources to name the best firms in the nation for any type of complex matter, and ultimately our research team was left with the top national firms showcased in this section. These firms truly are capable of handling any case effectively, and are authoritatively renowned within the US business and legal communities for the quality of their trial work and their litigation professionals.
Regional and local expertise is also a crucial factor in high-stakes litigation, and in the second section of the guide we identify the leading litigation firms and attorneys in each of the 50 US states and the District of Columbia. We did not zero in on practice area specialists in each state, instead focusing on general litigation expertise.
Each state chapter includes:
Rankings of the top local litigation firms in the state:
We broke each local market into “highly recommended” and “recommended” categories. All listed firms were consistently mentioned by peers and clients, but the “highly recommended” firms received the most mentions, and were held as dominant in their particular jurisdiction.
Rankings of the top “local litigation stars” in the state:
The list of “Local litigation stars” for each state reflects only those individuals who were consistently recommended as incontrovertible stars by clients and peers.
Rankings of the “Future stars” in the state:
The list of “Future stars” for each state reflects those partners and associates who were consistently recommended by peer partners, competitors and clients as litigators who are likely to appear as “Local litigation stars” in coming additions.
Editorials on each of the ranked firms:
We have made every effort to offer in-depth coverage of the ranked firms. In some cases, however, we were not able to provide editorial content for every ranked firm due to a lack of participation or information available about each firm.
In edition to those editorials, select lawyers and firms were offered the ability to write independent articles for each chapter. These are identified with firm headings and headshots of each specialist before each chapter. The articles were prepared by the firms for informational purposes only and do not constitute legal advice and do not constitute a lawyer-client relationship. Readers are recommended to seek advice from additional sources before acting.
Recommendations are made on the basis of extensive face-to-face and telephone interviews with the nation’s leading private practice lawyers and in-house counsel. These interviews were conducted between February and June 2008. Firms cannot pay to be recommended. Instead, firms have been independently offered the opportunity to take a professional listing regardless of editorial content.
Thank you to all those in-house counsel and firms that provided advice and opinions for this second edition. Thank you also to those recommended firms and individuals who took the time to submit questionnaires and participate in the interview process.

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February 7th, 2009

The Kentucky Court of Appeals issued 46 cases on Feb. 5th.  The following topics were discussed.  By reading the LawReader weekly synopsis of all Ky. Appellate decisions you can stay current in the law.  This one feature by itself if worth the monthly LawReader subscription fee of only $34.95 a month.


LawReader subscribers can read the synopsis and full text of each case by going to:




Subscribers can read the most current Ky. Supreme Court rulings at: KY. SUPREME COURT DECISIONS FOR JANUARY 22, 2009.

Non subscribers can sign up for lawreader  at:  SIGN UP – PRICING 


1   equitable subrogation theory disallowed:  
2   summary judgment-60.02 motion-extraordinary circumstances:  
3   educational debt must be assigned to the recipient of the educational benefit upon divorce:  
4   TO BE PUBLISHED discovery rule applies to disease – sanctions for discovery violations- expert testimony – interest allowed on judgment may be less than 12%:  
5   TO BE PUBLISHED damages not allowed for exercising right to appeal child support award:                                                    
6   prejudment interest-liquidated-unliquidated-matter of equity:  
7   martial distribution-goodwill of law firm-attorney fees-maintenance –dissipation of marital assets not found:  
8  medical malpractice-expert required on causation andnegligence-summary judgment:  
some evidence standard for prison discipline hearings:  
10 Uninsured employers fund- interest on lump sum awards-sovereign immunity- reduction of benefits for aliens not applicable to resident of kentucky:
11 worker’s compensation-injury not work related: 
18 worker’s compensation-alj error-remand:
19 appeal dismissed-no statement of a cause of action: 
20 murder-suicide- restraint of liberty-second degree assault-probative vs. prejudicial evidence:                                                           
21 11.42 motion:
22 date of dui conviction controls enhancement procedure:
23 Remand for hearing after appellant paid fee:
24 TO BE PUBLISHED identity theft vs. giving police officer a false name statutes – not lesser included offense:  
25 prison discipline –some evidence rule:                                             
26 60.02 motion not proper in this case: 
27 improper question to juror not error- instruction for extreme emotional disturbance not justified:  
28 eyewitness identification upheld-proof of value of stolen property:
29 miranda warning- harmless error-minimum sentence not proof of non-unanimous jury verdict:  
30 11.42 motion:                                               
31 appellant opened the door to 404-b testimony:  
32 11.42 motion:  
33 change of venue motion not timely:  
34 prosecutorial misconduct-send a message argument- difference in penalty phase – warning from former chief jusctice lambert to prosecutors:  
35 TO BE PUBLISHED amendment of indictment-notice to defendant – alternative jury instructions:                                               
36 identity ofoperator of vehicle-dui- evidence of effect of alcohol..30% reading admitted:  
37 TO BE PUBLISHED use of out of state convictions for pfo enhancement failed when they were not for one year or more –trafficing and possession of drugs- traceability of funds for forfeiture purposes:  
38 palpable error review on appeal – impeachment by prior inconsistent statement-cumulative error:  
39 double jeopardy-prosecutorial misconduct- comment on right to remain silent-closing argument- mistrial: 
40 11.42 motion – law of the case doctrine –aggravating circumstances-admission of client’s guilt:
41 policestop of hitchhiker suspect -search and seizure: 
42 reasonable suspicion for patdown search –police officer as expert on drug practices-jury instruction: 
43 suppression hearing-exigent circumstances exception for warrantless search:
44 post conviction discovery: 
45 joint criminal trials- evidence-harmless error:                                             
46 jury pool selection-directed verdict standards-serious physical injury: 


Former Chief Justice Lambert sends a message to prosecutors about the continued use of the “send a message” argument.

February 6th, 2009

 Senior Judge Joseph Lambert sitting on the Court of Appeals sent a direct warning to prosecutors who continue to flirt with the “send a message” argument to jurors. 
In his concurring opinion comments he said:
Kentucky prosecutors should be aware that their use of “send a message” arguments exposes the conviction obtained to a substantial risk of reversal on appeal.”
However in the case of Robinson v. Commonwealth, released on Feb. 6, 2009, the court upheld the conviction by making a distinction that the argument, although improper, came during the penalty phase and was less damaging then if it was made during the proof phase of the trial.
The Court of Appeals has reversed at least one case in the last year in which a prosecutor used the “send a message” argument but has upheld convictions in a number of other cases in which the improper argument was used.
The end result is that a prosecutor who makes such an argument has about a 90% chance of getting away with this error. 
The appellate courts having been warning for years that this argument is an error, and that it is wrong as it attempts to confuse the jury about it’s true function, but nevertheless as in this case, the courts continue to find technical distinctions that result in the misconduct being declared harmless.
Defense attorneys must be frustrated with all this biteless barking on the issue.  While reversal is a tough sanction, the court could surely come up with other sanctions that would “send a message” to prosecutors that when the court says a practice is “error” they should not be ignored.

Silly DUI bill once again raises its head…Senate Bill 5 would create exemption for drugged drivers

February 6th, 2009

Once again an attempt is being made to adopt the following bill.  This year it is called Senate Bill 5 (see full text below).  This bill originally was requested by a victim’s family who felt that a person who was driving while intoxicated by a drug could not be prosecuted.  That claim is simply not true. 

Court rulings have always allowed a driver who was under the influence of anything, including “stewed prunes” to be convicted if the substance affected their driving.  

This bill would mean that if a person had breathed marihuana fumes within the last 30 days (the period that marihuana can remain in your body) that you could be convicted of a DUI offense.


The bill has been repeatedly rejected by the House Judiciary Committee, so this year the proponents pushed it through the Senate.  One would assume that the goal of legislation is to keep impaired drivers off the road.  Now there is an attempt to expand the “status” offense to any use of any controlled substance regardless of its quantity or its affect on a person’s ability to drive safely.  


 Strangely the bill goes on to create an exemption that allows an impaired driver to be acquitted if the drug he has taken was prescribed by a physician.   So if you take a valium and it makes you groggy, but it was prescribed by a physician, then you will now have a defense that doesn’t exist under current law.


One loophole in the bill would allow a person to get a prescription for marihuana use and thereby be exempt even if he was stoned out of his head.





AN ACT relating to driving under the influence.

Be it enacted by the General Assembly of the Commonwealth of Kentucky:

âSection 1.   KRS 189A.010 is amended to read as follows:

(1)     A person shall not operate or be in physical control of a motor vehicle anywhere in this state:

(a)     Having an alcohol concentration of 0.08 or more as measured by a scientifically reliable test or tests of a sample of the person’s breath or blood taken within two (2) hours of cessation of operation or physical control of a motor vehicle;

(b)     While under the influence of alcohol;

(c)     While under the influence of any other substance or combination of substances which impairs one’s driving ability;

(d)     While the presence of a controlled substance is detected in the blood, as measured by a scientifically reliable test, or tests, taken within two (2) hours of cessation of operation or control of a motor vehicle;

(e)     While under the combined influence of alcohol and any other substance which impairs one’s driving ability; or

(f)[(e)]     Having an alcohol concentration of 0.02 or more as measured by a scientifically reliable test or tests of a sample of the person’s breath or blood taken within two (2) hours of cessation of operation or physical control of a motor vehicle, if the person is under the age of twenty-one (21).

(2)     With the exception of the results of the tests administered pursuant to KRS 189A.103(7), if the sample of the person’s blood or breath that is used to determine the alcohol concentration thereof was obtained more than two (2) hours after cessation of operation or physical control of a motor vehicle, the results of the test or tests shall be inadmissible as evidence in a prosecution under subsection (1)(a) or (f)[(e)] of this section. The results of the test or tests, however, may be admissible in a prosecution under subsection (1)(b) or (e)[(d)] of this section.

(3)     In any prosecution for a violation of subsection (1)(b) or (e)[(d)] of this section in which the defendant is charged with having operated or been in physical control of a motor vehicle while under the influence of alcohol, the alcohol concentration in the defendant’s blood as determined at the time of making analysis of his blood or breath shall give rise to the following presumptions:

(a)     If there was an alcohol concentration of less than 0.05 based upon the definition of alcohol concentration in KRS 189A.005, it shall be presumed that the defendant was not under the influence of alcohol; and

(b)     If there was an alcohol concentration of 0.05 or greater but less than 0.08 based upon the definition of alcohol concentration in KRS 189A.005, that fact shall not constitute a presumption that the defendant either was or was not under the influence of alcohol, but that fact may be considered, together with other competent evidence, in determining the guilt or innocence of the defendant.

         The provisions of this subsection shall not be construed as limiting the introduction of any other competent evidence bearing upon the questions of whether the defendant was under the influence of alcohol or other substances, in any prosecution for a violation of subsection (1)(b) or (e)[(d)] of this section.

(4)     The fact that any person charged with violation of subsection (1) of this section is legally entitled to use any substance, including alcohol, shall not constitute a defense against any charge of violation of subsection (1) of this section, except that it shall be a defense to subsection (1)(d) of this section if the accused consumed the controlled substance under a valid prescription from a practitioner, as defined in KRS 218A.010, acting in the course of his or her professional practice, and complied with the dosage restrictions.

KBA Executive Director Jim Deckard leaves for position with Hurt, Crosbie & May

February 6th, 2009

Running the 15,000-member state bar was “a great experience,” Deckard said, but he thought it was time to get back into private practice. He worked for a Nashville firm before former Chief Justice Joseph Lambert hired him.
Deckard said he is joining the law firm of  Hurt Crosbie & May.
Jason Nemes, the director of the Administrative Office of the Courts and a friend of Deckard, said he was leaving for a “better opportunity.”
The position that will now be filled after Deckard’;s departure as of April 1, 2009, will be filled by the Chief Justice and the KBA  Board of Governors.

Who might replace Justice Ginsburg?

February 5th, 2009

Word of Justice Ruth Bader Ginsburg’s illness on Thursday, just two weeks after Obama’s inauguration, set off an inevitable round of speculation about whether she will have to retire sooner than she would wish — and whom Obama might tap as her successor. 

Chances are, Obama’s first appointment will be a woman — especially if it’s to take the place of Ginsburg, the only woman on the court. And, like Ginsburg, she will be liberal leaning. 

Like every sitting justice, she also probably will be a federal appeals court judge. Obama has a number of options along those lines, including these three: 

_ Judge Diane Wood of the 7th U.S. Circuit Court of Appeals in Chicago. 

_ Judge Kim McLane Wardlaw of the 9th U.S. Circuit Court of Appeals in San Francisco. 

_ Judge Sonia Sotomayor of the 2nd U.S. Circuit Court of Appeals in New York. 

Either Wardlaw or Sotomayor would be the court’s first Hispanic justice. 

Other court watchers have mentioned Elena Kagan, the former Harvard Law School dean whom Obama has nominated as solicitor general, Michigan Gov. Jennifer Granholm and Georgia Supreme Court Chief Justice Leah Sears. 

The calculations would change, but only slightly, if Ginsburg’s is not the first retirement. The president still would face strong pressure to name a woman or a minority or both. 

Pancreatic cancer is a serious disease, with poor rates of long-term survival. But Ginsburg’s doctors believe they found her growth early, which would boost her chance for recovery. 

No one on the court has signaled that a retirement is imminent, not even 88-year-old John Paul Stevens. Five justices are at least 70 and a sixth, David Souter, will turn 70 in September. 

The three youngest are all conservatives — Chief Justice John Roberts, 54, Samuel Alito, 58, and Clarence Thomas, 60. Roberts and Alito were appointed by President George W. Bush. 

Justice Ruth Ginsburg has Surgery for Cancer.

February 5th, 2009

The Supreme Court released a statement that Justice Bader Ginsburg is hospitalized for surgery for pancreatic cancer tumor, February 5, 2009, and is expected to remain in the hospital for seven to ten days. This has been confirmed by several news outlets, including the Associated Press and NBC News.
Back ground of Justice Ginsburg from  wikipedia.org

Ruth Joan Bader Ginsburg (born March 15, 1933, Brooklyn, New York) is an Associate Justice on the U.S. Supreme Court. She was appointed by President Bill Clinton in 1993 and generally votes with the liberal wing of the court. She is the second woman and the first Jewish woman to serve on the Supreme Court. In 2008, Forbes Magazine rated her as the 72nd most powerful woman in the world, down from 23rd in 2007.
Prior to her appointment with the Supreme Court, Ginsburg served as a federal judge for 13 years on the United States Court of Appeals for the District of Columbia Circuit. In practice, she spent a considerable portion of her career as an advocate for the equal citizenship status of women and men as a constitutional principle. She engaged in advocacy as a volunteer lawyer for the American Civil Liberties Union, and was a member of the ACLU’s Board and one of its General Counsel in the 1970s. She served as a professor at Rutgers University School of Law and Columbia Law School. Life
Ginsburg was born Ruth Joan Bader in Brooklyn, New York. the second daughter of Nathan and Celia (née Amster) Bader. Ginsburg’s family called her “Kiki”. Her family were active members of the East Midwood Jewish Center, where she was one of the few people who took her confirmation seriously, and at age thirteen acted as the “camp rabbi” at a Jewish summer program at Camp Che-Na-Wah in Minerva, NY. However, she later abandoned Judaism.
Her mother took an active role in her education, taking her to the library often. Ginsburg attended James Madison High School, whose law program later dedicated a courtroom in her honor. Her older sister died when she was very young. Her mother struggled with cancer throughout Ginsburg’s high school years and died the day before her graduation. As of February 5, 2009, Justice Ginsburg herself has announced that she is battling pancreatic cancer.
Ruth Bader married Martin D. Ginsburg, later a professor of law at Georgetown University Law Center and an internationally prominent tax lawyer, in 1954. Their daughter Jane is Professor of Literary and Artistic Property Law at the Columbia Law School, and their son James is founder and president of Cedille Records, a classical music recording company based in Chicago.
Ginsburg received her B.A. from Cornell University. In 1954 she enrolled at Harvard Law School. When her husband took a job in New York City she transferred to Columbia Law School and became the first woman to be on both the Harvard and Columbia law reviews. She earned her LL.B. degree at Columbia, tied for first in her class.
In 1959 Ginsburg began a clerkship for Judge Edmund L. Palmieri of the United States District Court for the Southern District of New York. In 1960, despite a strong recommendation from the dean of Harvard Law School, U.S. Supreme Court Justice Felix Frankfurter turned down Ginsburg for a clerkship position.
From 1961 to 1963 she was a research associate and then associate director of the Columbia Law School Project on International Procedure, learning Swedish to co-author a book on judicial procedure in Sweden. Ginsburg conducted extensive research for her book in Sweden at the University of Lund.
She was a Professor of Law at Rutgers School of Law-Newark from 1963 to 1972. In 1970, she co-founded the Women’s Rights Law Reporter, the first law journal in the United States to focus exclusively on women’s rights. From 1972 until 1980, she taught at Columbia, where she became the first tenured woman and co-authored the first law school case book on sex discrimination. She has also taught in Tulane University Law School’s summer abroad program.
In 1977 she became a fellow at the Center for Advanced Study in the Behavioral Sciences at Stanford University. As the chief litigator of the ACLU’s women’s rights project, she argued several cases in front of the Supreme Court and attained a reputation as a skilled oral advocate.
Judicial career
Ginsburg was appointed a Judge of the United States Court of Appeals for the District of Columbia Circuit by President Carter in 1980.
President Bill Clinton nominated her as an Associate Justice of the Supreme Court on June 14, 1993. During her subsequent confirmation hearings in the U.S. Senate, she refused to answer questions regarding her personal views on most issues or how she would adjudicate certain hypothetical situations as a Supreme Court Justice. A number of Senators on the committee came away frustrated, with unanswered questions about how Ginsburg planned to make the transition from an advocate for causes she personally held dear, to a Justice on the highest court in America. Despite this, Ginsburg refused to discuss her beliefs about the limits and proper role of jurisprudence, saying “Were I to rehearse here what I would say and how I would reason on such questions, I would act injudiciously”.
At the same time, Ginsburg did answer questions relating to some potentially controversial issues. For instance, she affirmed her belief in a constitutional right to privacy, and explicated at some length on her personal judicial philosophy and thoughts regarding gender equality. The U.S. Senate confirmed her by a 96 to 3 vote and she took her seat on August 10, 1993.
Ginsburg characterizes her performance on the court as a cautious approach to adjudication, and argued in a speech shortly before her nomination to the Supreme Court that “measured motions seem to me right, in the main, for constitutional as well as common law adjudication. Doctrinal limbs too swiftly shaped, experience teaches, may prove unstable.” Ginsburg has urged that the Supreme Court allow for dialogue with elected branches, while others argue that would inevitably lead to politicizing the court.
Though Ginsburg has consistently supported abortion rights and joined in the Supreme Court’s opinion striking down Nebraska’s partial-birth abortion law in Stenberg v. Carhart (2000), she has criticized the court’s ruling in Roe v. Wade as terminating a nascent, democratic movement to liberalize abortion laws which might have built a more durable consensus in support of abortion rights. She has also been an advocate for using foreign law and norms to shape U.S. law in judicial opinions, in contrast to the textualist views of her colleagues Chief Justice John Roberts, Justice Antonin Scalia, Justice Clarence Thomas and Justice Samuel Alito. Despite their fundamental differences, Ginsburg considers Scalia her closest colleague in the Court, often dining and attending operas together.
Ginsburg was diagnosed with colo-rectal cancer in 1999 and underwent surgery followed by chemotherapy and radiation treatments. As reported by the Associated Press on February 5, 2009, she was again hospitalized for surgery related to pancreatic cancer.
Ginsburg is part of the “liberal wing” in the current court and has a Segal-Cover score of 0.680 placing her as the most liberal (by that measure, which takes no account of judicial actions post-confirmation) of current justices, although more moderate than those of many other post-War justices. In a 2003 statistical analysis of Supreme Court voting patterns, Ginsburg emerged the second most liberal member of the Court (behind Justice Stevens).
“Ginsburg Precedent”
More than a decade passed between the time Ginsburg and Stephen Breyer were appointed and the time another justice left the court. In that time, both Congress and the White House had switched to Republican control. When Sandra Day O’Connor announced her retirement in the summer of 2005 (with William Rehnquist’s death a few months later), both sides began to squabble about just how many questions President George W. Bush’s nominees would be expected to answer. The debate heated up when hearings for John Roberts began in September 2005. Republicans used an argument that they called the “Ginsburg Precedent”, which centered on Ginsburg’s confirmation hearings. In those hearings, she did not answer some questions involving matters such as abortion, gay rights, separation of church and state, rights of the disabled, and so on. Only one witness was allowed to testify “against” Ginsburg at her confirmation hearings, and the hearings lasted only four days.
In a September 28, 2005, speech at Wake Forest University, Ginsburg said that Chief Justice Roberts refusing to answer questions on some cases was “unquestionably right.” However, as the following sentence in the speech made clear, this statement did not affirm the existence of a “precedent” which the Judiciary Committee was obliged to follow; it was merely a statement the nominee could, at his discretion, refuse to answer questions about how he might rule.
Democrats had argued against Roberts’ refusal to answer certain questions, saying that Ginsburg had made her views very clear, even if she did not comment on all specific matters, and that due to her lengthy tenure as a judge, many of her legal opinions were already available for review. Ginsburg was recommended to Clinton by then Attorney General Janet Reno.
During the John Roberts confirmation hearings, Democratic Senator Joe Biden, Hatch, and Roberts himself brought up Ginsburg’s hearings several times as they argued over how many questions she answered and how many Roberts was expected to answer. The precedent was again cited several times during the confirmation hearings for Justice Samuel Alito.

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Ky. Department of Revenue Extends Deadline for Paying of Quarterly Taxes

February 3rd, 2009

 Monday, February 02, 2009  

FRANKFORT, Ky. (Feb. 2, 2009) — Finance and Administration Cabinet Secretary Jonathan Miller announced today that the Kentucky Department of Revenue has extended by two weeks the deadline for filing the K-2s and K-3s that would be due today, February 2, 2009. 
The due date for the K-2s and K-3s will now be February 16, which will coincide with the due date for the Employee’s Quarterly Unemployment Wage and Tax Report (UI-3).  There will be no late file or late pay penalty assessed for any returns filed between now and February 16.  In addition, there will be minimal economic impact to the Commonwealth since many employers have already filed and paid their liabilities for the fourth quarter of 2008.
“I recognize the hardships many employers have faced due to last week’s snow storm and problems still ahead,” said Sec. Miller. “This additional time will give employers a little breathing room to take care of some immediate concerns.”

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Kentucky Bar Association to present “Rule of Law” Symposium. Bradford Hall at KSU -Friday

February 3rd, 2009


 The Kentucky Bar Association, with the support of Kentucky State University, will sponsor an engaging examination of the “Rule of Law” beginning this Friday, February 6, at 9:30 a.m. in Bradford Hall on the KSU campus in Frankfort.  

WHO:    Featured speakers include Chief Justice John D. Minton, Jr., Kentucky Supreme Court; Norman L. Greene, a partner in the New York law firm Schoeman, Updike & Kauffman LLP and a much published author on the rule of law; and Elizabeth “Betsy” Anderson, executive director and executive vice-president of the American Society of International Law. 

        Additionally, Kentucky Supreme Court Justices will facilitate small group discussions on judicial independence; civil rights and social justice; the courts and dispute resolution; business, labor and the workplace; crimes, punishment, and deterrence; and families, children and family courts. 

WHAT:   The “Rule of Law” is a celebrated judicial concept that asserts no one is above the law and everyone must answer to the law. Representatives from business, education, public health, the media, legal and judicial services, social services, theology, the military and law enforcement will gather during the Symposium to discuss how the rule of law provides a framework for working across many different disciplines in our society. The event will serve as a celebration of the 200th birthday of the Commonwealth’s most famous son, Abraham Lincoln, whose belief in the rule of law guided his legal career and the advice he gave as counsel. 

WHEN/WHERE:The Kentucky Rule of Law Symposium will begin 9:30 a.m. with featured speakers in the Bradford Hall Auditorium and will continue at 11 a.m. in the Hill Student Center with small group discussions. A luncheon program at 12:15 p.m. will feature a living history presentation of Abraham Lincoln by Jim Sayre of Lawrenceburg. Small group discussions will continue in the afternoon in the Hill Student Center.  

NOTE:   Due to limited parking on the KSU Campus, shuttles will be provided from the parking lot of the Kentucky Cabinet for Health and Family Services beginning at 7:45 a.m. prior to the registration and continental breakfast beginning at 8:45 a.m. Also, the KBA welcomes journalists who would like to participate in the group discussions, as well as those seeking to cover the event. For more information, contact Amy Carman at 564-3795, ext. 294. 

Supreme Court allows pat down search of passengers…

February 1st, 2009

By Ruby Gonzales, Whitter Daily News   01/31/2009

The Supreme Court ruled that police can search passengers of a car pulled over if they suspect the person is armed and dangerous.
Officers can frisk a car’s occupants even if they haven’t committed a crime.
Local law enforcement say the Jan. 26 ruling clarifies when they can do searches during traffic stops. But experts see the High Court’s decision as an expansion of police powers and expect more passengers will get patted down for weapons.
At the sheriff’s Temple Station where deputies were briefed about the court decision this week, Lt. Allan Smith doesn’t think it changes much of what they do.
“It just re-affirmed that if you have a reasonable suspicion they have a weapon, you can search,” Smith said.
Existing law requires an officer had to have a legal standing before he can stop anybody and detain them, according to Lt. Richard Daniels of the Sheriff’s Department’s field operations, support services unit in Monterey Park.
He said other court decisions allowed officers to detain a driver and gave them leeway to stop everybody in the car.
“Now with this case, it made it simpler. We can stop a car and search everybody if we believe they’re armed,” Daniels said.
But he doubts if it would lead to more searches.
“There really won’t be much impact. You still have to have a reason to search,” Daniels said.
Even before the Supreme Court’s recent ruling, police didn’t pat down everyone they pulled over.
“When we stop a car, we don’t automatically search everybody,” said Whittier Police spokesman Jason Zuhlke.
He said the decision to search a car’s occupant is up to the officer.
“If the officer feels a search of the passenger is necessary for the officer’s safety,” Zuhlke said.
However, Erwin Chemerinsky, dean of the UC Irvine School of Law thinks one will see more passengers getting patted down by police because of the court’s decision.
But he said the ruling will require the police have “articulable suspicion” the person they want to search has a gun.
While the justices agreed that traffic stops are especially fraught with danger to officers, they didn’t give police free reign.
Justice Ruth Bader Ginsburg , who wrote the Supreme Court’s opinion, said to justify a pat-down of a driver or a passenger, “the police must harbor reasonable suspicion that the person subjected to the frisk is armed and dangerous.”
The ruling reversed an Arizona Court of Appeals decision to overturn an Eloy, Ariz. man’s conviction.
The appellate court said an Oro Valley police officer didn’t have the right to search Lemon Montrea Johnson for weapons on April 19, 2002 even if she had reason to suspect he was armed and dangerous. The officer found a gun and marijuana on Johnson.
The search happened in Tucson, Ariz. as members of a gang task force patrolled a neighborhood associated with the Crips gang.
Officer Maria Trevizo and two detectives pulled over a car carrying three people after a check of the license plate showed its registration was suspended for an insurance-related violation.
Johnson, who sat in the back seat, wore a blue shirt and a blue bandanna. Trevizo considered the clothing consistent with being a Crips member.
Johnson told the officer he was from Eloy, Ariz. which she knew was home to a Crips gang. He said he served time in prison for burglary and had been out for about a year.
Trevizo asked him to step out of the car. She wanted to talk to him away from his companions in order to gather information about his gang. Suspecting he might have a weapon, she patted him down “for officer safety” and felt the butt of a gun in his waistband.
Johnson began to struggle and was handcuffed.
He asked the trial court to suppress the evidence claiming it was found during an unlawful search. The motion was denied. In 2005, a jury found him guilty of possession of a weapon by a prohibited possessor and possession of marijuana.
But the appeals court said the search was unconstitutional; that a passenger talking with an officer about gang activity isn’t subject to a pat-down.

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High Court says cops can pat down passengers in traffic stops

February 1st, 2009

By Ruby Gonzales, Whitter Daily News   01/31/2009

The Supreme Court ruled that police can search passengers of a car pulled over if they suspect the person is armed and dangerous.
Officers can frisk a car’s occupants even if they haven’t committed a crime.
Local law enforcement say the Jan. 26 ruling clarifies when they can do searches during traffic stops. But experts see the High Court’s decision as an expansion of police powers and expect more passengers will get patted down for weapons.
At the sheriff’s Temple Station where deputies were briefed about the court decision this week, Lt. Allan Smith doesn’t think it changes much of what they do.
“It just re-affirmed that if you have a reasonable suspicion they have a weapon, you can search,” Smith said.
Existing law requires an officer had to have a legal standing before he can stop anybody and detain them, according to Lt. Richard Daniels of the Sheriff’s Department’s field operations, support services unit in Monterey Park.
He said other court decisions allowed officers to detain a driver and gave them leeway to stop everybody in the car.
“Now with this case, it made it simpler. We can stop a car and search everybody if we believe they’re armed,” Daniels said.
But he doubts if it would lead to more searches.
“There really won’t be much impact. You still have to have a reason to search,” Daniels said.
Even before the Supreme Court’s recent ruling, police didn’t pat down everyone they pulled over.
“When we stop a car, we don’t automatically search everybody,” said Whittier Police spokesman Jason Zuhlke.
He said the decision to search a car’s occupant is up to the officer.
“If the officer feels a search of the passenger is necessary for the officer’s safety,” Zuhlke said.
However, Erwin Chemerinsky, dean of the UC Irvine School of Law thinks one will see more passengers getting patted down by police because of the court’s decision.
But he said the ruling will require the police have “articulable suspicion” the person they want to search has a gun.
While the justices agreed that traffic stops are especially fraught with danger to officers, they didn’t give police free reign.
Justice Ruth Bader Ginsburg , who wrote the Supreme Court’s opinion, said to justify a pat-down of a driver or a passenger, “the police must harbor reasonable suspicion that the person subjected to the frisk is armed and dangerous.”
The ruling reversed an Arizona Court of Appeals decision to overturn an Eloy, Ariz. man’s conviction.
The appellate court said an Oro Valley police officer didn’t have the right to search Lemon Montrea Johnson for weapons on April 19, 2002 even if she had reason to suspect he was armed and dangerous. The officer found a gun and marijuana on Johnson.
The search happened in Tucson, Ariz. as members of a gang task force patrolled a neighborhood associated with the Crips gang.
Officer Maria Trevizo and two detectives pulled over a car carrying three people after a check of the license plate showed its registration was suspended for an insurance-related violation.
Johnson, who sat in the back seat, wore a blue shirt and a blue bandanna. Trevizo considered the clothing consistent with being a Crips member.
Johnson told the officer he was from Eloy, Ariz. which she knew was home to a Crips gang. He said he served time in prison for burglary and had been out for about a year.
Trevizo asked him to step out of the car. She wanted to talk to him away from his companions in order to gather information about his gang. Suspecting he might have a weapon, she patted him down “for officer safety” and felt the butt of a gun in his waistband.
Johnson began to struggle and was handcuffed.
He asked the trial court to suppress the evidence claiming it was found during an unlawful search. The motion was denied. In 2005, a jury found him guilty of possession of a weapon by a prohibited possessor and possession of marijuana.
But the appeals court said the search was unconstitutional; that a passenger talking with an officer about gang activity isn’t subject to a pat-down.

Governor Beshear orders unprecedented total callup of Kentucky National Guard

January 31st, 2009

Saturday, January 31, 2009   

FRANKFORT, KY. Governor Steve Beshear today directed Kentucky’s Adjutant General, Maj. Gen. Edward W. Tonini, to order the unprecedented activation of all Kentucky Army National Guard units, along with selected portions of the Kentucky Air National Guard. The activation is in response to the devastating winter storms that rendered more than a half million Kentuckians without electric power and has paralyzed most of Western Kentucky. 

“This is the largest state callup of Kentucky National Guard forces in the history of the Commonwealth,” said Gov. Beshear, “It represents the strongest possible effort to relieve human suffering and ensure the safety and well-being of our citizens.” 

The activation will place an additional 3,000 Soldiers and Airmen into the effort to address the needs of the people of the Commonwealth during this winter storm. Prior to today the Kentucky National Guard had 1,600 Citizen-Soldiers supporting the relief effort. The total number of troops on duty will be 4,600 by the end of today. This activation exceeds troop levels for the 1997 flood (1,600 troops) and Kentucky’s support of recovery efforts following Hurricane Katrina in 2005 (approximately 2,000). 

“We are now in the process of notifying these newly activated Guard soldiers and Airmen,” said Maj. Gen. Tonini. “They have been instructed to report to their home armories and bases as soon as possible.” 

This activation does not include Guard members who are college students or who have not completed basic training. 



“To effectively coordinate this massive Army and Air National Guard effort, we have established Joint Task Force Kentucky to command and control five subordinate task forces arrayed across the Commonwealth,” said Maj. Gen. Tonini. “Joint Task Force Kentucky will be commanded by Brig. Gen. Lonnie Culver who previously served as deputy commander of a similar task force on the Mississippi gulf coast during Hurricane Katrina recovery operations. Gen. Culver is now responsible for ensuring the unity of effort between Guard unit commanders and state and local emergency management officials as we work together across the state to assess needs and prioritize use of manpower and equipment resources. “ 

“This mission is nothing new to the Kentucky National Guard,” Tonini added. “We have come to the aid of our fellow Kentuckians on a regular basis for more than two hundred years. What is different today is the scope of this disaster. We are committed to the safety and well-being of our neighbors and we will be on duty until the job is done.” 


An immediate priority has been placed on assisting in the restoration of electric power to water plants, communications facilities and homes. Troops are currently clearing routes for emergency response vehicles as well as helping utility crews gain access to damaged power transmission lines. 

Establishment of shelters and points of distribution for essential supplies are also prime missions for Guard Soldiers and Airmen. 

Weather permitting, National Guard helicopters will continue to conduct overflights for the Kentucky Transportation Cabinet over roads that are impassable. Additionally, two helicopters have been assigned to provide support to utility companies to identify damaged power transmission lines. 


In an expanded mission for the Kentucky National Guard, troops are now teaming up with local emergency management agencies, fire departments, rescue squads, law enforcement agencies and volunteers to conduct “wellness checks” for all households in Kentucky’s 120 counties. 

Troops have been instructed to attach green tape on the mail boxes or other locations visible from the road indicating that residents have sufficient food, power, water or communications. Red tape will be used to indicate homes where shortfalls exist. 

Houses marked with red tape will be reported to local emergency operations centers and will be placed on a list to be resurveyed for on-going support based on county capabilities. 

“We are fortunate to have the Air Guard’s 123rd Special Tactics Squadron in this effort” said Maj. Gen. Tonini. “Their expertise in search and rescue, coupled with their access to snowmobiles and all-terrain vehicles, makes them valuable members of this task force.” 

Members of the Kentucky Air National Guard have already been on site in Western Kentucky for several days working alongside Army Guard Soldiers in distributing supplies and equipment to local citizens. 



- Assist Kentucky Department of Transportation (DOT) in clearing roadways 

- Transporting medical and dialysis patients to hospitals 

- Deliver cots to affected areas from partner agencies to affected areas 

- Transport food and bottled water to affected areas on request 

- Provide power generation to critical facilities throughout the state 


- Joint Incident Site Communications Capability (JISCC) with crew deployed to the Benton, Ky. area providing satellite and radio-based communications support to local authorities 

- Provided satellite phones to areas in Western Kentucky 

- Provide National Guard Mobile Command Post to Greenville, Ky. 

- Additionally, six (6) Regional Emergency Response Network (RERN) vehicles from the Florida National Guard are now supporting Kentucky relief efforts. The self-contained, mobile RERN systems combine cellular phone, radio and satellite communications technologies to provide emergency responders with the full spectrum of communication capabilities. 

See attached graphic illustrutating areas of responsibility for Task Force Kentucky. 

For more information on the Kentucky National Guard and the Department of Military Affairs, visit: www.dma.ky.gov  


The Exclusionary Rule is being eliminated and nothing is being offered as a replacement for prosecutorial or police misconduct.

January 31st, 2009

Editorial by LawReader Senior Editor Stan Billingsley     Jan. 30, 2009 

A LawReader study reveals that prosecutorial misconduct is rarely sanctioned orpunished in Kentucky.   While the appellate courts frequently consider the issue, and often find that in fact the prosecutor did violate a rule or practice, the error is overlooked due to an increasingly broad interpretation of the harmless error rule.  

One example is a prohibition against the prosecutor making a closing argument in which he/she makes a “send a message” argument to the jury. The Court of Appeals has strongly lectured the bar that it is improper for the prosecutor to make an argument to the effect that the jury should send a message to lawbreakers that that crime will not be tolerated in their community.  The Court has said that such an argument encourages the jury to ignore the instructions and their duty to focus on the pending case, and to become crime fighters.  Under such a theory the jury’s duty to be a fact finder is minimized, and their duty to be crime fighters is enlarged.  That is close to allowing a committee made up of Mothers Against Drunk Driving (MADD) being appointed as jurors in all DUI cases.  

The courts have not been consistent in their “send a message” rulings.  One prosecutor who used this argument in 2007 was mentioned by a panel of the Court of Appeals and the verdict was reversed and sent back for a new trial, yet three months later another panel of the Court of Appeals found such an argument to be merely a Harmless Error.  In a number of rulings subsequent to the one reversal, the Court of Appeals and the Ky. Supreme Court have found other “send a message” arguments to be Harmless Error.

The court in Clark v. Commonwealth of Kentucky, 833 S.W.2d 793 (Ky. 12/19/1991 said:

“…prosecutors have “the responsibility to [prosecute] according to the principle that one accused of a crime is entitled to a fair and impartial trial.”


That responsibility is abused when they make arguments that appear calculated to skate as close as possible to the edge of arguments previously condemned by this Court. Such gamesmanship does not do justice, and always flirts with a fall through thin ice into the icy waters of reversal for prosecutorial misconduct.

This principle mentioned in Clark is increasingly ignored.  The LawReader study  (SUPREME COURT STUDY 2007) of the Ky. Supreme Court, authored by former law school professor Martin Huelsman, suggests that the Ky. Supreme Court is more cautious in applying the harmless error rule than is the Ky. Ct. of Appeals.  While this rule has its rightful place, everytime this rule is used one should look at it closely to see if the rule is reasonably applied or is it just giving the prosecutor a free pass that will only encourage more bad conduct in the future by other prosecutors. 
While some may argue that prosecutors are advocates for the state, that argument fails to acknowledge that prosecutors have a dual role.  That dual role has been cited by the courts and goes:

“A prosecutor has the responsibility of a minister of justice and not simply that of an advocate.” – - Official Commentary to SCR 3.130(3.8) Supreme Court 1989.”
Some years ago I attended a seminar at the Harvard Law School on Theories of Jurisprudence.  One theory that was popular in Nazi Germany was the idea that it wasn’t all that bad to convict an innocent person, since doing so would demonstrate the power of the state and scare the hell out of potential lawbreakers.  That theory appears close to the “actual innocence is no defense” theory credited to Justice Scalia.

The only tool that we have every seen used against a prosecutor who has violated the rules of procedure is the Exclusionary Rule.  Under this rule if evidence is improperly obtained, it cannot be used at trial of the defendant.   Conservative jurists have attacked the Exclusionary Rule for the last 40 years so that today it is rarely enforced, and exceptions such as the Harmless Error rule have taken precedence.  It can safely be said that the actual use of the Exclusionary Rule to suppress evidence is only applied in the most egregious cases.

Other nations rely on other ways to deter police wrongdoing directly, including professional discipline, civil lawsuits and criminal prosecution.  These enforcement options could be used in the United States, but rarely are.  We know of no instances of professional discipline of a prosecutor for violating the rules by the Kentucky Bar Association, and the structure of the Unified Prosecutorial System has never been used to sanction a prosecutor.

Since the local prosecutor is in charge of all prosecutions, there is little chance that under our current system that they will consider prosecuting themselves anytime soon.

The use of civil sanctions against a prosecutor is limited by our rules of sovereign immunity.  Likewise civil suits against police officers are rarely filed, and rarely successful.

Therefore, the tools used by other nations in lieu of the Exculpatory Rule are inhibited by our judicial structure.

There are numerous cases exposed over the last decade in which prosecutors or police have falsified evidence, withheld exculpatory evidence, or threatened and intimidated witnesses to offer evidence that massages the facts to fit the Government’s case.  Yet where are the sanctions imposed on the prosecutor or police official who violates the rules of the game?   We have never seen a case where a prosecutor was removed from office for misconduct.

Judges who step out of line are subject to sanction by the Judicial Conduct Commission.  There is no such body that reviews the conduct of prosecutors and issues sanctions.

We have seen the legislature impose more and more mandatory sentences on offenses. This has worked to allow prosecutors to pile up charges against defendants and then plea bargain them down.  Any practitioner of criminal law will be able to cite instances where their clients where intimidated to plead guilty due to the piling up of charges against defendants, and even threats to prosecute the defendants friends and family members.  

The cost of a criminal trial can in itself be a prosecutorial tool, and more than a few allegations of financial ruin to a defendant have been alleged against prosecutors.

 These practices result in “sentencing”, being done by prosecutors and not by judges or juries.

 We suggest that we now have three possible results in any criminal charge:

 1. Guilty 

 2. Innocent

 3. Plead guilty due to plea bargaining intimidation.

While the first two results give the public some reliable indication of actual guilt or innocence, the third result leaves some degree of doubt about the actual guilt of the defendant.  Was the defendant actually guilty or was he protecting his family from financial ruin or prosecution?  Was the defendant actually guilty or was he merely intimidated by threats of a extremely long prison sentence, and only plead guilty to minimize his risks of incarceration.  

Since the Exculpatory Rule is being progressively eliminated as a tool to enforce the proper use of the rules and to protect constitutional rights, what will replace it?

We suggest that one solution is for the legislature to create a Prosecutors Conduct Commission.  This legislation should require the adoption of a Code of Conduct for Prosecutors.  (The Federal Courts have such a code, but most states including Kentucky do not.) Judges have a Code of Conduct, why don’t prosecutors?  Such a Commission could follow the makeup of the Judicial Conduct Commission and should include prosecutors, citizen members and defense lawyers.

We forbid judges from publicly praising themselves for their lengthy sentences and their anti-crime stance.   On the other hand, prosecutors are posting web sites in which they publish the pictures of people they have convicted and seek praise for all the scalps they have obtained.   While a web site boasting of all the scalps earned by a prosecutor may be explained by their role as an advocate, it does great violence to their duty to also be “ministers of justice” as required by SCR 3.130(3.8).

The current direction we are taking is that prosecutorial power are increasingly overcoming constitutional rights, overcoming the rules of procedure and the rules of evidence.  The long term effect of this unlimited power by prosecutors is that prosecutorial and police power are replacing judges and jury trials. Is this really where we want to go?

This problem could be alleviated by the Appellate Courts being more careful in the application of the Harmless Error rule.  The Appellate Courts in practice rarely mention the name of the prosecutor who violates a rule of procedure. While this is not a solution to the problem, it is one small step that could and should be taken by the Appellate Courts.  We also suggest that the Appellate Courts could refer egregious violations of defendants rights to the KBA for review.  

Another step that would be dramatic, is to remove the cloak of sovereign immunity from prosecutors and police who violate the rules, withhold evidence, file charges without probable cause, or threaten financial ruin to defenses who refuse to plead.

Another step that could be adopted is to allow a process where a person who is acquitted of criminal charges can seek compensation for his legal defense expenses.  This could be accomplished by allowing such compensation to be paid by the Crime Victims – Board of Claims agencys.

The following article is excerpted from New York Times article by Adam Liptak -  Jan. 30, 2009

The Endangered Exculpatory Rule.

This month, Chief Justice Roberts, writing for the majority in Herring v. United States, a 5-to-4 decision, took a big step toward the goal he had discussed a quarter-century before. Taking aim at one of the towering legacies of the Warren Court, its landmark 1961 decision applying the exclusionary rule to the states, the chief justice’s majority opinion established for the first time that unlawful police conduct should not require the suppression of evidence if all that was involved was isolated carelessness. That was a significant step in itself. More important yet, it suggested that the exclusionary rule itself might be at risk.

The Herring decision “jumped a firewall,” said Kent Scheidegger, the general counsel of the Criminal Justice Legal Foundation, a victims’ rights group. “I think Herring may be setting the stage for the Holy Grail,” he wrote on the group’s blog, referring to the overruling of Mapp v. Ohio, the 1961 Warren Court decision.

Justice Samuel A. Alito Jr. joined the Herring decision and has been a reliable vote for narrowing the protections afforded criminal defendants since he joined the court in 2006. In applying for a job in the Reagan Justice Department in 1985, he wrote that his interest in the law had been “motivated in large part by disagreement with Warren Court decisions, particularly in the areas of criminal procedure,” religious freedom and voting rights.

“With Alito’s replacement of O’Connor,” said Craig M. Bradley, a law professor at Indiana University, “suddenly now they have four votes for sure and possibly five for the elimination of the exclusionary rule.”

The four certain votes, in the opinion of Professor Bradley and other legal scholars, are Chief Justice Roberts, Justice Alito, Justice Antonin Scalia and Justice Clarence Thomas, who is also an alumnus of the Reagan administration.

The fate of the rule seems to turn on the views of Justice Anthony M. Kennedy, who has sent mixed signals on the question. As in so many areas of the law, there are indications that the court’s liberal and conservative wings are eagerly courting him. They are also no doubt looking for the case that, with Justice Kennedy’s vote, will settle the issue once and for all.

The United States takes a distinctive approach to the exclusionary rule, requiring automatic suppression of physical evidence in some kinds of cases. That means, in theory at least, that relatively minor police misconduct can result in the suppression of conclusive evidence of terrible crimes.

Other nations balance the two interests case by case or rely on other ways to deter police wrongdoing directly, including professional discipline, civil lawsuits and criminal prosecution.

The Herring decision can be read broadly or narrowly, and its fate in the lower courts is unclear. The conduct at issue in the case — in which an Alabama man, Bennie D. Herring, was arrested on officers’ mistaken belief that he was subject to an outstanding arrest warrant — was sloppy recordkeeping in a police database rather than a mistake by an officer on the scene. Since the misconduct at issue in Herring was, in the legal jargon, “attenuated from the arrest,” the decision may apply only to a limited number of cases.

But the balance of the opinion is studded with sweeping suggestions that all sorts of police carelessness should not require, in Chief Justice Roberts’s words, that juries be barred from “considering all the evidence.”

A broad reading of the decision by the lower courts, Professor Bradley said, means “the death of the exclusionary rule as a practical matter.”


Law firms consider getting rid of “billable hours” fee system

January 31st, 2009

Law firms will have to overhaul compensation structures to bill for “something other than taking a long time to do something”.   Law Firms are running out of hours they can bill.  Are lawyers really working 12 hours a day every weekday of the year?


JONATHAN D. GLATER   New York Times – January 29, 2009

Lawyers are having trouble defending the most basic yardstick of the legal business — the billable hour.


Clients have complained for years that the practice of billing for each hour worked can encourage law firms to prolong a client’s problem rather than solve it. But the rough economic climate is making clients more demanding, leading many law firms to rethink their business model.


“This is the time to get rid of the billable hour,” said Evan R. Chesler, presiding partner at Cravath, Swaine & Moore in New York, one of a number of large firms whose most senior lawyers bill more than $800 an hour.


“Clients are concerned about the budgets, more so than perhaps a year or two ago,” he added, with a lawyer’s gift for understatement.


Big law firms are worried about their budgets, too. Deals are drying up, and only the bankruptcy business is thriving. Two top firms, Heller Ehrman and Thelen, have collapsed in recent months. Others have laid off lawyers and staff. So cost-conscious clients may now be able to sway long reluctant partners to accept alternatives.


The evidence of a shift away from billable hours is, for now, anecdotal, as few surveys exist. But partners at a half-dozen other big bellwether firms and lawyers at corporations, who sometimes engage outside counsel, say they are more often seeing different pay arrangements.


Mr. Chesler, who is an advocate of the new billing practices, said that instead of paying for hours worked, more clients are paying Cravath flat fees for handling transactions and success fees for positive outcomes, as well as payments for meeting other benchmarks. He said that such arrangements were still a relatively small part of his firm’s total business, but declined to discuss billable rates and prices in detail.


The system of billing by the hour has been firmly in place since the 1960s; keeping track of time spent provided a rationale for the amount charged. In earlier, perhaps more trusting times, firms stated a price “for services rendered,” without explanation.

But one has only to eavesdrop on a table of law associates comparing their workloads to get a sense of how entrenched the billable hour is, creating a pecking order among lawyers, identifying the best as the busiest and the most costly.


With a sigh that is simultaneously proud and pained, lawyers will talk about charging clients for 3,000 or more hours in a year — a figure that means a lawyer spent about 12 hours a day of every weekday drafting motions or contracts and reviewing other lawyers’ motions and contracts.


“Does this make any sense?” said David B. Wilkins, professor of legal ethics and director of the program on the legal profession at Harvard. “It makes as much sense as any other kind of effort to measure your value by some kind of objective, extrinsic measure. Which is not much.”


To be sure, lawyers may be talking a good game but secretly hoping that the economy will bounce back and everything will return to normal, said Frederick J. Krebs, president of the Association of Corporate Counsel, whose members work in the legal departments of corporations and other organizations. He said that lawyers cheerfully lamented the bad incentives created by billable time for years, even as they grew rich from the practice.

“I like to paraphrase Churchill,” Mr. Krebs said. “In all these conversations, never has so little been accomplished by so many for so long. It just hasn’t happened.”


But the crashing economy may achieve what client complaints could not, Mr. Krebs added. “We may well be at a tipping point here.”


Greed may also encourage lawyers to change their payment plans. Law firms are running out of hours that they can bill in a year, said Scott F. Turow, best-selling author of legal thrillers and a partner at Sonnenschein Nath & Rosenthal in Chicago.


“Firms are approaching the limit of how hard they can ask lawyers to work,” he wrote, in an e-mail response to a reporter’s query. “Without alternative billing schemes, lawyers will not be able to maintain the rapid escalation in incomes that big firms have seen.”

A recent study released last year by the Association of Corporate Counsel showed a rise in the number of companies paying by the hour — but that covered the spring and summer, before the worst of the downturn.


Many smaller firms and solo practitioners have long offered to perform services, like mortgage closings, for flat fees. Plaintiff lawyers also often work on a contingency basis, receiving a percentage of any awards.


“What we do in our business litigation is charge clients some kind of monthly retainer, which gets credited against an eventual recovery,” said John G. Balestriere, a partner at Balestriere Lanza, a Manhattan firm with five lawyers. “It’s a lot easier for us to tell a client, ‘We want to do this, we want to push for summary judgment,’ ” he said, and so avoid a lengthy, costly trial.


When not paid by the hour, lawyers’ approach to their work changes, said Carl A. Leonard, a former chairman of Morrison & Foerster who is now a senior consultant at Hildebrandt International, which advises professional services firms.


In one case, he said, Morrison & Foerster negotiated a fixed fee for defending a company in court, covering work up to the point of a motion for summary judgment.


On top of the fee, if the case settled for less than what the company feared having to pay if it lost in court, the law firm got a percentage of the amount saved. The arrangement made sense when the goal was to resolve the dispute quickly, Mr. Leonard said.

Lawyers on the case negotiated a settlement for much less than the client’s worst-case number, Mr. Leonard said. “The effective hourly rate was something like 150 percent of our hourly rates,” he added. “We made money, the client was happy.”


In litigation, firms that charge by the hour can suffer if they are too successful and end a lawsuit — and the stream of payments from continuing work — too quickly. One law firm that recently collapsed, Heller Ehrman, was hurt in part because a number of cases had settled.


That collapse highlights the risk to law firms experimenting with other payment arrangements: If lawyers set too low a price, they lose money. Many lawyers may not be good enough businessmen to pick the right price, said Mr. Krebs, of the Association of Corporate Counsel.


“The difficulty is, we don’t really know what it costs us to do something,” he said. But the biggest stumbling block to alternative fee structures may be the managing partners at law firms, who will have to overhaul compensation structures to reward partners and associates for something other than taking a long time to do something.


“I don’t think law firms have completely come to grips with that issue,” said J. Stephen Poor, managing partner at Seyfarth Shaw in Chicago. “But they need to start coming to grips with it very quickly.”

Pulaski County to break ground for new Judicial Center FEb. 2nd.

January 30th, 2009
FRANKFORT, Ky. — The public is invited to a groundbreaking ceremony for the planned Pulaski County Judicial Center on Monday, Feb. 2, at 1:30 p.m. The event will take place at the construction site at 52 Public Square in downtown Somerset.

The Kentucky General Assembly authorized the Pulaski County project in 2005 and approved its funding in 2006. The total project cost is $22.4 million. The building will be approximately 78,000 square feet and is expected to be completed in October 2010.

New judicial centers often replace older, vastly inadequate facilities, greatly increasing the efficiency of services and public flow, said Garlan VanHook, executive officer of the Department of Facilities for the Administrative Office of the Courts.

Judge rules that men who didn’t register for draft can hold federal jobs

January 27th, 2009

January 27, 2009
   By Jonathan Saltzman,  Boston Globe Staff
A federal judge in Boston has declared unconstitutional a 1985 law by Congress that bars people from most federal employment if they knowingly failed to register for the draft.
US District Court Judge Douglas P. Woodlock, siding with four men fired by the federal government because they failed to register years earlier, said the law violates a constitutional provision barring the legislative branch from punishing people without a trial.
“I conclude that no circumstances exist that would permit Congress, in contravention of the Constitution’s Bill of Attainder Clause, to prohibit nonregistered males age twenty-six and older from federal agency employment for their lifetimes without judicial decisionmaking,” Woodlock said in a 32-page decision.
The four men, residents of Massachusetts, California, Michigan, and Washington, D.C., want to be rehired and compensated for lost wages. They had worked for agencies ranging from the IRS to the Federal Deposit Insurance Corporation.
“There’s already a criminal statute that says if you don’t register with the Selective Service if you’re required to, you can be indicted, you get a trial, and there’s a punishment for committing a crime,” said the civil rights lawyer for the four men, Harvey Schwartz of Boston. “What you shouldn’t do is have the legislative branch say, ‘You get no trial, you have no opportunity to put up a defense, and here’s how you’re punished.’ “
Schwartz said the statute of limitations for charging someone with a felony for failing to register for the draft had lapsed for all four men. He said at least one of the men was unaware that he had to register more than 20 years ago because he was homeless at the time and was never notified of the requirement.
Woodlock, an appointee of the Reagan administration, plans to hold a hearing Feb. 6 to discuss what happens with the lawsuit. Schwartz said he will seek to have Woodlock certify the suit as a class-action claim on behalf of thousands of other federal employees fired under the same statute.
Schwartz said it is highly unusual for a federal trial judge to declare a law unconstitutional.
“The usual course, when you’re challenging the constitutionality of a federal law, is you lose in the trial court, you might win or lose in the appeals court, and the final decision gets made by the Supreme Court,” Schwartz said. “It’s a big deal for a judge to tell Congress that you violated the Constitution.”
Officials from the Justice Department, which is defending the government in the suit, were not immediately available to comment on the ruling.

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