Law Professor Jonathan Turley says Bush Administration Officials Should be Held to Account for Torture – Warrantless Spying on Citizens

December 24th, 2008

 

December 23, 2008  – BLT – Legal Times Blog

Q&A: Jonathan Turley on Holding Bush and Cheney Accountable

George Washington University Law School professor Jonathan Turley is a leading constitutional scholar and commentator who has served as counsel for several defendants in terrorism and national security cases in recent years.
On talk shows and in print, Turley has argued in the last month that the Bush Administration should not be allowed to fade quietly from the scene on Jan. 20. He says top administration officials should be held to account for what he sees as criminal violations in connection with the torture of detainees, and its warrantless surveillance program. Turley (pictured at right) also asserts that if Eric Holder Jr., President-elect Barack Obama’s nominee to be attorney general, declines to view waterboarding as a crime, the Senate should not confirm him.
Earlier in December, Turley invoked the surveillance program in federal court as part of his appeal on behalf of Ali al-Timimi, a U.S. Muslim scholar convicted on terrorism charges in 2005. Turley claims al-Timimi was wiretapped under the program, and if he was, that it violated al-Timimi’s constitutional rights and spoiled the prosecution because it was withheld from his defense.
Turley answered questions by e-mail on how and why Bush officials should be prosecuted for their conduct during the last eight years.
What are the offenses of Bush Administration officials that you think need to be redressed or punished?
“The two most obvious crimes in this administration are the torture program and the unlawful surveillance program. Despite the effort to pretend that there is some ambiguity or uncertainty on these crimes, the law is quite clear.
“Waterboarding is not some new concept in the law. This torture technique goes back to the Spanish Inquisition and probably earlier. Courts in the United States, England and other countries have long held that waterboarding is not only a crime but a war crime. We prosecuted Japanese officers for this war crime in World War II. The English sentenced people to death for this form of torture.
“After the Spanish American War of 1898 in the Philippines, Major Edwin Glenn was court martialed and sentenced to 10 years hard labor for waterboarding an insurgent. The Senate denounced the practice. President Theodore Roosevelt dismissed a general for allowing his troops to waterboard suspects. “What is fascinating about this situation is that Congress and the Administration continue to pretend that they do not see a crime committed in plain view. However, the rest of the world sees an unambiguous war crime, particularly with Cheney casually discussing his role on national television.
“This could prove a bit of a problem when Bush, Cheney, and others travel after leaving office. While they would no doubt object to the comparison, there is a similarity with General Augusto Pinochet who was constantly faced with the threat of arrest during international travel. Home countries are generally given the first opportunity to prosecute for such crimes. When they fail to do so, international efforts often follow.”
What is the crime involved in the surveillance program?
“The law is equally clear. It is a felony to engage in warrantless surveillance of this kind. Congress has enacted two statutes that provide the sole means by which the government can obtain the necessary approval for electronic surveillance: Title III of the Omnibus Crime Control and Safe Streets Act of 1968 (“Title III”), 18 U.S.C. § 2510 et seq., and the Foreign Intelligence Surveillance Act, 50 U.S.C. § 1801 et seq. Together, Title III and FISA supply “the exclusive means by which electronic surveillance . . . and the interception of domestic wire, oral, and electronic communications may be conducted.” 18 U.S.C. § 2511(2)(f) (emphasis added). One federal court in Detroit has already declared the program to be unlawful and we challenged the law in the Al-Timimi case.”
Which officials would you prosecute, and how low or high up the ranks would you go?
“I was asked this question last week by a member of Congress. My response was that the criminal law would extend to all who participated in the criminal act. The criminal code does not call for the prosecution of all convenient crimes or defendants.
“Politicians merely have to get out of the way and allow a special prosecutor to take this investigation wherever it would lead. Having said this, it would be difficult to hold lawyers like John Yoo, who merely gave legal advice, responsible – no matter how baffling and unsupported it proved to be. Likewise, on the unlawful surveillance program, Democratic and Republican members who knew of the unlawful program would not be subject to prosecution.
“Bush, Cheney, and high-ranking officials would be obvious targets for prosecution under either program. However, I have resisted these questions from members because it misses the point: if there was a crime, we should not be concerned about where an investigation might lead. It will lead where criminal conduct is found. We do not ask that threshold questions for bankrobbers or purse snatchers. We leave the outcome to the criminal justice system.”
Why have your assertions not gained more currency in the public debate?
“The mainstream media has bought into the concept that this is merely a political not a legal question. Indeed, media often leave the clearly misleading impression that there is an equal academic debate over whether waterboarding is torture or whether warrantless surveillance is legal. To this day, media refers to waterboarding as an ‘interrogation technique’ when courts have consistently defined it as torture.”
How specifically should this accounting be done — by the next administration, by Congress, by an independent commission, the UN?
“All civil libertarians are asking is for politicians to simply get out of the way. Democratic leadership has blocked any serious investigation in the torture crimes. It will remain a lasting stain upon that institution that it refused to act in the face of clear war crimes.
“However, all that is needed now is for members of Congress to stop obstructing this process and allow a special counsel or prosecutor to investigate these crimes.”
What about the next administration?
“Eric Holder should be asked the same question that Mukasey refused to answer in his confirmation hearing: is waterboarding a crime? If he refuses to answer or denies that it is a crime, he should not be confirmed. If he admits that it is a crime, he should order a criminal investigation.
““This is precisely why Mukasey refused to answer the question (after first stating implausibly that he did not know what waterboarding is). The appearance around the world of not only a presumptive war crime but our continued debate over whether to investigate is destroying any credibility left after eight years of controversy. The rule of law demands that crimes be investigated equally for crimes equally whether they are committed by the lowest and the highest in our society.”
Why do you think this is necessary? Why not just turn the page?
“Every criminal defendant that I have represented wanted to ‘just turn the page.’ In my view, the response of our country to these crimes is as bad as the crimes themselves. A country should not be judged by those who break its laws. However, it is legitimately judged by how we treat those who break our laws.
“If there is no investigation or prosecution for these crimes, we will confirm what our enemies are claiming: that we are hypocrites who demand accountability from everyone but ourselves. If Obama’s administration circumvents a prosecution, it will adopt the very same legal relativisim that ultimately destroyed the credibility and authority of the Bush Administration an international pariah. The ‘page’ referenced in your question is the page that contains our commitment to the rule of law and blind justice. If we turn that page, we turn our backs on the very thing that defines us and distinguished us from our enemies.”
What efforts are underway to make this inquiry happen? What are the chances it will happen, and if you think they are low, why is that?
“The Democrats are clearly still testing the water for an alternative to prosecution to see if they can get away with another commission. Leaders do not see any personal or political benefits from a prosecution. It will come down to the voters. The commission proposal shows utter contempt for the intelligence of voters.
“We have been a nation of chumps – electing officials who run on civil liberties and legal process who have silently blocked any investigations into these crimes. I am still hoping that the public will finally have enough and demand that these politicians get out of the way and allow the criminal process system to work. The key may be the Holder confirmation. If he evades this simple and direct question (as did Mukasey), he should not be confirmed.”
 What reaction are you getting to your proposal, inside and outside GW?
“I have heard from people around the country asking for ways that they can be heard. There is an obvious sense of frustration and betrayal with Democratic leaders. The criminal investigation is a litmus test of principle for the Obama administration.
“If President Obama cannot stand with the rule of law on the issue of war crimes, he is continuing the approach of politics without principle that have made the current president and current Congress the least popular in modern history. It will take considerable pressure, however.
“This week, Democratic leaders again voiced interest in a commission to determine whether to investigate for war crimes. Since when do we need commissions to investigate whether to investigate crimes? The crime here is well defined and openly committed. A commission would only work to delay any action in the hopes that voters will eventually lose interest and dismiss the issue as ‘ancient history.’ The last thing we need is another commission like the 9-11 Commission. Congress has already passed laws making torture a crime. It is now up to prosecutors to enforce those laws.”
 

Law Professor: Bush v. Gore Set to Outlast Its Beneficiary – Case cited in Cincinnati Ruling

December 23rd, 2008

 

ADAM LIPTAK    December 22, 2008

 

The Supreme Court’s decision in Bush v. Gore, issued eight years ago this month, was widely understood to work like that tape recorder in “Mission: Impossible.” It was meant to produce a president and then self-destruct.

 

“Our consideration is limited to the present circumstances,” the majority famously said, “for the problem of equal protection in election processes generally presents many complexities.”

 

That sentence, translated from high legal jargon into English, was often taken to mean this: The decision was a ticket for one ride only. It was not a precedent. It was a ruling, yes, but it was not law.

 

But now, as the petitioner leaves the national stage, Bush v. Gore is turning out to have lasting value after all. “You’re starting to see courts invoke it,” said Samuel Issacharoff, a law professor at New York University, “and you’re starting to see briefs cite it.”

Divorced from its earlier context, the growing point of the case is to impose order on often chaotic election processes in the states.

 

“Bush v. Gore introduced an important idea,” Professor Issacharoff said. “It is that the political process has rules, the rules have to be fairly applied and that those rules need to be known up front.”

 

Bush v. Gore was, for instance, unapologetically at the heart of a unanimous decision last month from the United States Court of Appeals for the Sixth Circuit, in Cincinnati, allowing a comprehensive challenge to Ohio voting systems to move forward. The three-judge panel acknowledged the Supreme Court’s admonition about the limited precedential value of Bush v. Gore. Nonetheless, the panel said, “we find it relevant here.”

 

What Bush v. Gore means, the panel said, quoting from the decision itself, is that once a state grants the right to vote on equal terms, it may not “by later arbitrary and disparate treatment, value one person’s vote over that of another.” Forcing people in some parts of the state to wait many hours to vote as a consequence of the arbitrary allocation of voting machines, for instance, would violate the core principle in Bush v. Gore, the panel said.

It is possible, of course, to read Bush v. Gore more narrowly than that. The case did, after all, emerge from authentically peculiar circumstances. It may be that the decision means only something like this: A court-supervised statewide recount violates equal protection guarantees when it treats similar ballots differently by instructing local officials to use new and insufficiently specified standards.

 

But even versions of that narrower reading are turning out to have a practical impact.

Bush v. Gore was front and center in the briefs and arguments last week in the Minnesota Supreme Court’s consideration of the recount litigation in the Senate race between Norm Coleman and Al Franken. The candidates’ briefs cited the case some 20 times, arguing in earnest detail about how the Supreme Court’s understanding of the role of equal protection in election administration applied in Minnesota.

 

“Bush v. Gore has a future,” said Edward B. Foley, an election-law specialist at Ohio State. “We’re now starting to see it. There is a sense, eight years later, that some of the initial reaction was an overreaction.”

In the early days, of course, the case was mocked as illegitimate in both its reasoning and its result. “That was so completely the prevailing wisdom” in the law schools, Professor Issacharoff said, “that there were even challenges as to whether Bush v. Gore could be taught as a serious case.”

 

Many judges flatly refused to consider the decision as precedent for anything, relying on the Supreme Court’s admonition and a more general unease. No Supreme Court opinion, including concurrences and dissents, has ever cited Bush v. Gore.

 

“It hasn’t been cited even in cases where it should have been cited,” said Richard L. Hasen, who teaches election law at Loyola Law School in Los Angeles and is the author of “The Untimely Death of Bush v. Gore,” published last year in The Stanford Law Review. “The case is radioactive. Anyone who touches it knows he’s playing with something very dangerous.”

 

Indeed, when the Ninth Circuit cited the case in March 2001, it was to justify its own assertion that one of its rulings was “valid only in this case.”

 

But the law is ordinarily understood as a system of neutral principles consistently applied. “To provide a reason for a decision,” Frederick Schauer wrote in The Stanford Law Review in 1995, “is to include that decision within a principle of greater generality than the decision itself.”

 

To be sure, courts sometimes limit earlier decisions to their facts, which robs them of precedential force and essentially overrules them. But what the Supreme Court did in Bush v. Gore was “historically unique,” Chad Flanders wrote in The Yale Law Journal last year. “No other majority in the history of the court,” Mr. Flanders wrote, “has applied limiting language to the very case being decided.”

 

Other scholars say the court’s admonition was a routine caution that the decision, issued very quickly, should be read narrowly, not that it should be ignored entirely.

Until the recent Sixth Circuit decision, the most important invocation of Bush v. Gore by a federal appeals court probably came in a 2006 case decided by a different panel of the same court. The decision was later vacated as moot by the full court, but the testy interaction of the panel’s judges remains instructive.

 

The dissenting judge on the three-judge panel criticized his colleagues for relying on “the Supreme Court’s murky decision in Bush v. Gore” in a case about the use of punch-card ballots in Ohio. The judge, Ronald Lee Gilman, pointed to the one-ride-only language and what he called the Supreme Court majority’s ideological inconsistency and lack of intellectual seriousness.

 

The judges in the majority were having none of that. “Murky, transparent, illegitimate, right, wrong, big, tall, short or small,” they wrote, “regardless of the adjective one might use to describe the decision, the proper noun that precedes it — ‘Supreme Court’ — carries more weight with us.”

 

“Whatever else Bush v. Gore may be,” Judge Boyce F. Martin Jr. wrote for the majority, “it is first and foremost a decision of the Supreme Court of the United States and we are bound to adhere to it.”

 

FRANKLIN CIRCUIT COURT RULING HAS INTERNATIONAL IMPLICATIONS – Kentucky’s scheme to seize internet domain name raising eyebrows on world wide web

December 22nd, 2008

 

 

A Kentucky Court Approves the Seizure of Out-of-State Companies’ Domain Names: A Dangerous Precedent that May Chill Free Speech and Impede Global Internet Communications

 

By ANITA RAMASASTRY             Monday, Dec. 22, 2008

Does a government or court have the right to seize a domain name when a website’s activities are illegal where the government or court sits, but legal elsewhere?
This is the question raised in a recent Kentucky dispute over online gambling websites. Online gambling is legal in many places in the world, but illegal in the United States. Thus, the State of Kentucky – in an effort to impede online gaming by state residents – went to court to seize 141 domain names as a means of shutting down many popular online casinos. All of the domain-name owners likely reside out-of-state.
In October, Kentucky Judge Thomas Wingate held that Kentucky’s seizure was lawful on the ground that the domain names were illegal “gambling devices” subject to Kentucky’s anti-gambling laws. He reached that conclusion first ex parte (that is, without the presence of the site operators’ attorneys) and then after a hearing. Judge Wingate thus ordered various domain name registrars to transfer ownership of the 141 domain names to Kentucky officials – which will effectively shut down the websites, or at least deny potential users access to those sites via their popular domain names. To reach the conclusion that Kentucky had the power to seize the domain names, the judge had to make several logical leaps – such as finding that the domain names were intangible property located in Kentucky.
Just last week, three judges on the Kentucky Court of Appeals heard oral argument in the case, which has the Internet world spinning. In the interim, the Court of Appeals has stayed the order, so the domain names will not be transferred to the State until and unless the Court of Appeals rules in the State’s favor. The primary basis of the appeal is that the attempted seizure violates the U.S. Constitution and Supreme Court precedent, including the First Amendment, and the principle that States cannot interfere with commerce that is national or global.
In this column, I will discuss the lower court’s ruling and why it is flawed.
The Kentucky Court’s Ruling
Initially, Kentucky’s Justice and Public Safety Cabinet filed its complaint in secret and under seal, obtaining an ex parte ruling before the gambling site operators had a chance to object. Then, some of the web site operators sought to overturn the ruling at a September 26 court hearing. Their attorneys contended, for example, that the court lacked jurisdiction over the seizure of their domain names because domains are merely contractual rights, rather than property. They also argued that because the domain names weren’t physically located in Kentucky, Kentucky did not have authority to seize them.
The court found, however, that the domain names were intangible property, similar to software or a patent. Judge Wingate also held that the state had jurisdiction over the domain names because they were located in Kentucky in that they were virtual casinos which operated like physical ones — inside Kentucky.
Finally, Judge Wingate held that the domain names themselves were illegal gambling devices. A Kentucky statute provides that illegal “gambling devices” in Kentucky are subject to forfeiture, and defines a “gambling device” as a tangible device manufactured and designed specifically for gambling.
Judge Wingate’s interpretation of the statute is thus questionable on two counts: The domain names are not tangible, and it is odd to call them “devices” for gambling in the sense that, say, a roulette table fits that definition. Yet Judge Wingate compared the domain names to “virtual keys for entering and creating virtual casinos from the desktop of a resident in Kentucky.” He reasoned that the domain name is indispensable in maintaining the player’s continuing access to the virtual casinos’ “premises.”
Judge Wingate did amend his earlier seizure order to exempt any online casino that employs geographic filtering tools to block Kentucky residents. However, as the domain name owners and Internet civil liberties groups have argued, it is very expensive and difficult to actually block sites from reaching different states or countries. In contrast, sites can effectively put disclaimers on their sites or attempt to block transactions by screening credit cards. Now, as noted above, the case is stayed pending appeal, so the domain names are currently still in the owners’ possession.
Are Domain Names Property, and If So, Where Does that Property Reside?
There is no question as to what the right practical and constitutional answer is here: Domain names registered outside of Kentucky should not be considered to be property “present” in Kentucky. If so, any government anywhere in the world could seize the domain names of any site, thus blocking the site globally – a grossly overbroad action when a government can block a site in its own country.
But what about the answer under Kentucky property law? Many courts have grappled with the issues of whether a domain name is a form of property or simply a contractual right to use a particular name to identify a certain internet protocol (IP) address on the web (similar to how a phone directory matches a name to a phone number).
To consider the issue, it is necessary to know a little more about how domain names work: The job of distributing domain names and keeping track of who controls them is delegated to registrars. There is only one “registry” for each top-level domain, including “.com”. In turn, there are hundreds of registrars who sell domain names to the public. Registrars track of who has registered each name and for how long. Each registrar has its own contractual terms, which it applies to domain name registrations, and these vary greatly.
Several courts have held that a domain name is a form of intangible property. In 2003, for instance, the U.S. Court of Appeals for the Ninth Circuit issued a decision upon which Judge Wingate relied. In Kremen v. Cohen, plaintiff Gary Kremen sued registrar Network Solutions for conversion in connection with the domain name “sex.com,” after a competitor had improperly obtained a transfer of the name away from Kremen using a forged letter provided to the registrar.
In Kremen, the Ninth Circuit confronted the issue of whether a domain name registration was a form of property that could be subject to conversion (that is, that could be illegally taken from its owner) under California law. The panel of judges – in an opinion by Judge Alex Kozinski — concluded that it was, indeed, a type of property and offered a three-part test: “[F]irst, there must be an interest capable of precise definition; second, it must be capable of exclusive possession or control; and third, the putative owner must have established a legitimate claim to exclusivity.”
Some courts have followed suit; others have ruled differently. In Network Solutions, Inc. v. Umbro International, the Virginia Supreme Court concluded that the holder of a domain name has a contract right, based on an agreement with a registrar, and held that domain names are not subject to garnishment under Virginia state law. It reasoned that “t;a domain name registration is the product of a contract for services between the registrar and registrant.”
Did the Kentucky Court Have Jurisdiction Over the Domain Names?
Even assuming that Judge Wingate (and Judge Kozinski, on whose opinion Judge Wingate relied) are right that a domain name is property, however, where is that property located?
The court in Kentucky v 141 Domain Names invoked “in rem” jurisdiction – that is, jurisdiction invoked basis on the location of the property (the “res,” or thing) itself. (Neither the registrars nor the domain owners appear to be located in Kentucky.) Judge Wingate, in turn, held that in rem jurisdiction was proper here, because the gambling websites were accessible to persons located in Kentucky and allowed them to open accounts and to gamble. But this would means that any online casino a Kentucky resident patronizes is deemed to be located in Kentucky – and also that any online casino is deemed to be located (not just to do business) everywhere a single one of its users lives.
This logic seems deeply flawed. After all, Kentucky was not seeking to ban or fine the businesses that ran the websites for illegally doing business in Kentucky. It wanted to take their domain names on the ground that the domain names were located there.
Where are domain names located? Traditionally, courts find that intangible property is located where its owner is domiciled, or in some cases (such as that of stocks) where it is registered. With respect to intangible property, such as stock, insurance policies, and rights to payment, courts have repeatedly held that such property has its location where the party controlling it may be found. And again, as noted above, none of the domain name owners appear to reside in Kentucky.
Personal jurisdiction over the registrars is a different issue; this, again, is in rem jurisdiction, asserted over the domain names. In many circumstances, states have acted to block websites from reaching their citizens, or have prohibited Internet companies from transacting in their states – by fining them or otherwise sanctioning them – but there, states asserted personal jurisdiction based on the companies’ doing business in the state.
Why the Kentucky Ruling Also Abridges Constitutional Rights
Both the domain name owners and civil rights groups have raised other important constitutional arguments in the Kentucky case. These organizations, including the Electronic Frontier Foundation and the American Civil Liberties union, have highlighted the danger that could result if a state court can order the seizure of domains regardless of where they are registered.
The constitutional issues here include whether due process is violated if the domain name registrars are hauled into court in Kentucky, when they may not have adequate contacts there to form a basis for the assertion of jurisdiction.
The First Amendment issues here, too, are strong: A state’s power to seize a domain name might have a chilling effect on speech, causing people to self-censor. Moreover, if the domain names were seized, could others refer to them – or would they also be punished?
Finally, the ability of Kentucky to seize the domain names – and thus effectively deny citizens from other states access to sites — impedes interstate commerce in the United States, and thus is a violation of the Commerce Clause.
If the Kentucky Court of Appeals sides with Judge Wingate, what will this mean for websites? The result would be both frightening and absurd. If any state or country had the power to order the seizure of sites’ domain names (even those used and registered elsewhere) on the ground that the sites violated local laws, this would give huge power to any government – including repressive regimes. As the Electronic Frontier Foundation has noted: “If the mere ability to access a website gives every court on the planet the authority to seize a domain name if a site’s content is in some way inconsistent with local law, the laws of the world’s most repressive regimes will effectively control cyberspace.”
A country that dislikes certain types of speech, for example, could order the transfer of the relevant domain names and thus effectively hijack a vital part of the Internet. Of course there is an issue of whether registrars would comply with such orders – but we should be able to depend on law, not just the registrars, to protect our rights.
             
 

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Buyer’s Remorse Prompts Appellate Court Decision – Right to Rescind Condo Purchase limited

December 22nd, 2008

MIAMI, Dec. 22 , 2008
- Property values reached an all time low this year compelling many condo speculators to back out of contracts in order to minimize their losses. Cases surfaced where plaintiffs sought to rescind their sales contracts, accusing developers of failure to comply with certain disclosure requirements mandated by the Interstate Land Sales Full Disclosure Act (ILSA). Last week, however, many plaintiffs reached a dead end with those allegations.
On December 9, the Eleventh Circuit issued the first opinion in the country from a circuit court of appeals addressing the split of authority among the federal district and state courts on whether builders, whose developments are partially exempt under ILSA, must comply with all disclosure provisions.
The Eleventh Circuit reversed the federal district court’s ruling, preventing plaintiffs from rescinding their contracts with homebuilders who rightfully believed they had met all requisite disclosure requirements for their types of developments. Akerman Senterfitt represented the National Association of Home Builders and the Florida Home Builders Association as amicus curiae in the appeal before the Eleventh Circuit.
“This favorable decision is the result of excellent work by our appellate attorneys and reflects the overall strength and experience of our appellate practice group,” said Joseph Hatchett, Chair of Akerman’s appellate practice group, former Chief Judge of the United States Court of Appeals for the Eleventh Circuit and former Florida Supreme Court Justice. “Our litigators have been involved in a number of speculative condo litigation matters this year and can expect these cases to expand regionally throughout the U.S. as long as the housing market remains depressed.”
                                                                                                                                                               

 

Beaver’s Mother Barbara Billingsley turns 93 – See how she is related to LawReader’s Editor Stan Billingsley

December 22nd, 2008

Dec. 22, 2008
Barbara Billingsley celebrates her 93rd. birthday Dec. 22, 2008. 
Actress Barbara Billingsley (born December 22, 1915) is an American film, television and character actress, who in her five decades of television came to prominence in the 1950s as an everyday mother, June Cleaver, on Leave it to Beaver, and its sequel, Still the Beaver (also known as The New Leave It to Beaver), two decades later. It was during that time she provided the voice of the unseen “Nanny” on Jim Henson’s Muppet Babies.

Barbara Billingsley’s first husband Glenn Billingsley is a cousin ( a couple of times removed) to LawReader Senior Editor Stan Billingsley.  Glenn’s father Logan Billingsley and his Uncle Sherman Billingsley, and Judge Stan Billingsley’s father were cousins and all were originally from southern Oklahoma.  

One of Judge Billingsley’s prize possessions is an autographed picture from Barbara Billingsley and a personal letter where she discusses the family history.

Sherman Billingsley was famous for owning the Stork Club, which was the top club in New York City during the 40’s and 50’s.   The Stork Club made use of television to broadcast from the club and often hosted Walter Winchell, the Kennedys  and other celebrities.  Gossip columnists staked out the club in order to catch a glimpse of the rich and famous who stopped by to be seen.  The Stork Club for many years threw THE ultimate New Year’s Eve party.

After Barbara Billingsley divorced Glenn Billingsley, she retained the name Billingsley.

Career

With a year at Los Angeles Junior College behind her, Billingsley traveled to Broadway when Straw Hat, a revue in which she was appearing, attracted enough attention to send it to New York. When, after five days, the show closed, she took an apartment on 57th Street and went to work as a $60-a-week fashion model.
As an actress on the silver screen, she had usually uncredited roles in major motion picture productions in the 1940s. These roles continued into the first half of the 1950s with The Bad and the Beautiful as well as the sci-fi story Invaders from Mars (1953). Her film experience led to roles on the sitcoms Professional Father and The Brothers and an appearance with David Niven on his anthology series Four Star Playhouse.
Billingsley became best known for her role in the 1950s and 1960s television series Leave It to Beaver as June Cleaver, wife of Ward Cleaver (Hugh Beaumont) and the mother of Wally (Tony Dow) and Beaver Cleaver (Jerry Mathers). The Cleaver household became iconic in its representation of an archetypal suburban lifestyle associated with 1950s America. In the show, Billingsley often could be seen doing household chores wearing pearls and earrings. The pearls were her idea. The actress had an unsightly surgical scar on her neck and thought that wearing a strand of pearls could cover it up for the cameras. In later seasons of the show she also started wearing high heels to compensate for the fact that the actors who played her sons were getting taller than her. [1] The sitcom show ran from 1957 to 1963 and proved to be very lucrative for Billingsley.
When production of the show ended in 1963, Billingsley became typecast as saccharine sweet and had trouble obtaining acting jobs for years. She traveled extensively abroad until the late 1970s. After an absence of 17 years from the public eye (other than appearing in two episodes of The F.B.I. in 1971), Billingsley spoofed her wholesome image with a brief appearance in the comedy Airplane! (1980), as a passenger who could “speak jive.”
She became the voice of “Nanny” and “The Little Train” on Muppet Babies from 1984 to 1991.
Billingsley appeared in a Leave It to Beaver reunion television movie entitled Still the Beaver in 1983, a year after her on-screen husband during the six-year original run of the series, Hugh Beaumont, died of a heart attack, thus, playing the widowed mother. She also appeared in the subsequent revival television series, The New Leave It to Beaver (1985-1989). In the 1997 film version of Leave It to Beaver, Billingsley played the character “Aunt Martha”.
Now 93, Billingsley recently completed a role on NBC’s sitcom My Name Is Earl.
On May 6, 2008, while being hospitalized at Cedars-Sinai Medical Center, she was unable to attend the Academy Leonard Goldenson Theatre in North Hollywood, California, where the Academy of Television Arts & Science presented, “A Salute to TV Moms.” The surviving TV moms who attended the party were: Marjorie Lord, Holland Taylor, Bonnie Franklin, Vicki Lawrence, Tichina Arnold, Cloris Leachman, Doris Roberts, Diahann Carroll, Catherine Hicks and Meredith Baxter. In Billingsley’s absence, her name was mentioned in her honor.

Personal life

Billingsley was born Barbara Lillian Combes in Los Angeles, California. She and her first husband, Glenn Billingsley, a successful restaurateur, had two sons, Drew and Glenn, Jr. Since 1974, Drew and Glenn have owned and operated Billingsley’s Restaurant in West Los Angeles, in the tradition of their father, and their great uncle, Sherman Billingsley, founder of New York City‘s very fashionable 1940s-era nightclub, The Stork Club. Billingsley divorced Glenn Billingsley, but kept his surname professionally, and later married Roy Kellino, a director. After Kellino’s death, she married Dr. William Mortenson, who died in 1981.
Billingsley is related by marriage to actor/producer Peter Billingsley, known for his starring role as Ralphie in the seasonal classic A Christmas Story. First husband Glenn’s cousin is Peter’s mother, Gail Billingsley.

Film roles

Television shows

 

“Bare Bones” does not mean No Bones!! A closing argument may be used to “Flesh Out” the instructions. But as currently applied in the courts, the Bare Bones rule is ALL BONE AND NO FLESH.

December 21st, 2008

 

By Judge Stan Billingsley (Ret.)
 

Justice Palmore is credited with creating the Ky. Bare Bones rule for jury instructions in Cox v. Cooper, 510 S.W.2d 530 (Ky., 1974) when he said:
 

“Instructions] should not contain an abundance of detail, but should provide only the bare bones of the question for jury determination.”‘
 

Palmore has been quoted as saying:
 

what a lawyer should do if he or she is not satisfied with the trial court’s instructions: “[I]f counsel felt that the jury was too thick to get the point all he had to do was to explain it in his summation.”  (This quote comes from the Cox decision.)
 

Other decisions have explained Palmore’s Bare Bones rule and said:
 

The concept permits the instructions to be “fleshed out” in closing argument.”
 

 

      Justice Palmore did not originally forbid more robust instructions that “defined the rights of a litigant”, indeed he wrote that sometimes that something other than Bare Bones instructions might be appropriate.  In his ruling in Cox  he qualified the strict application of the rule when he said the Bare Bones rule should only be applied  “as a general proposition”.
 

Justice Palmore explained the Bare Bones rule in:
 

Cox v. Cooper, 510 S.W.2d 530 (Ky., 1974)
“ It may sometimes be appropriate for instructions to define the rights of a litigant, as for example in the instance of a peace officer sued for assault incident to an arrest, but as a general proposition they should be couched in terms of duties only. Recovery hinges not on the question of who was within his rights, but who breached a duty.
If the duty is simple enough to be stated without defining it in terms of the rights of one party or the other, that is all that is necessary, desirable, or proper.
In this case the jury was instructed that each party had the duty of not entering on the red light, and as to the light that was enough. Unmistakably it had to mean that they had the right to enter on any other color, and if counsel felt that the jury was too thick to get the point all he had to do was to explain it in his summation. Our approach to instructions is that they should provide only the bare bones, which can be fleshed out by counsel in their closing arguments if they so desire.
        Schwartz v. Humphrey, Ky., 437 S.W.2d 750 (1969), we considered at some length the question of just when it is appropriate, vel non, to confine the instructions in a controlled intersection case to the narrow issue of which driver had the traffic light in his favor. When the evidence would support an inference that both vehicles entered the intersection properly, or that one or both of the drivers thereafter could have avoided the collision by the exercise of ordinary care (as it often may be when the width of the intersecting street is such that in the course of crossing it a driver has time to observe the other vehicle’s intrusion and space in which to stop or turn aside), the instructions should not be limited to the issue of which one violated the red light. However, far from being inconsistent with that principle, the instructions given in this case were entirely in conformity with it.”
Just how far can counsel go in “fleshing out the skelton of the Bare Bones instructions?
 

While the Bare Bones rule has been readily applied by the courts, the limits of trial counsel’s right to then “flesh out” those instructions is not as easy to apply in the trial situation.  
 

In 2003 the court in Yahya v. Lexmark (see below) appeared to leave a great deal of discretion to trial counsel on how far they could go to “flesh out” the jury instructions.   In Yahya the court said an attorney could flesh out the jury instructions “…to the extent and to the measure that the respective counsel deem appropriate.”
 

Other rulings cited herein, (See Collins case)   appear to limit this right to explaining “what such instructions mean, or do not mean.”
 

One important point is not answered by the courts. What about those situations where the “duty” is stated in the instruction in the most general language possible, and the court refuses an instruction stating the actual wording of the applicable statute creating that “duty”.  How can one explain what the instruction means if they can’t discuss the actual wording of the statute that created the duty as cited in the instruction? 
 

There is no clear court ruling that says the attorney in his closing argument may cite the specific law upon which the duty mentioned in the instruction is based. Therefore there is no court ruling which allows the attorney in his closing argument to explain the underlying law.
 

In practice, it is not unusual for the court to issue an instruction compliant with the “bare bones” rule, but then ordering the attorney not to discuss the underlying statute which creates the duty upon which the instruction is based.
 

Such a practice effectively guts the “fleshing out” remedy to an incomplete “bare bones” instruction. 
 

We would suggest that our appellate courts should provide some guidance on whether or not an attorney may cite the statute upon which the instruction is based, and to provide the bench and bar with guidance about the extent of the right to “flesh out” the jury instructions on closing argument.
 

In a recent case issued by the Ky. Supreme Court Ky. Supreme Court –  2007-SC-000006-MR.pdf  TO BE PUBLISHED – McCracken Circuit Ct. -  Dec. 18, 2008  STANLEY STOKES  V.  COMMONWEALTH OF KENTUCKY, the court allowed the Commonwealth to introduce a definition from a medical dictionary under the Judicial Notice rule.
 

 But in another decision handed down the same day Ky. Supreme Court –  2007-SC-000377-MR.pdf  TO BE PUBLISHED – Fayette Circuit Court  Dec. 18, 2008
 Ondra Leon Clay  V. Commonwealth of Kentucky , the court virtually forbade the reading of a statute to the jury.
“…taking judicial notice of “the law” during the course of a trial is tantamount to instructing the jury prior to the close of the evidence.   Obviously, a court could still take judicial notice of a law, if that law constituted an adjudicative fact in a particular case . An example of this would be proving the legal drinking age if there was a dispute as to what that age is, or any other time that it might be necessary to prove what the law is as a question of fact.

This philosophy places a “dictionary definition” in a higher evidentiary status than a relevant statute published in the Kentucky Revised Statutes.

If counsel cannot read the text of the statute and explain it, and the trial court using the “bare bones” doctrine feels compelled not to instruct the jury on the actual language of the relevant law, and if the “fleshing out” doctrine is limited to only explaining the actual words contained in the bare bones instruction, then the arguing lawyer is left with nothing to explain.  

Ergo, there is virtually no meaning to the “fleshing out’ right as currently applied in our trial courts. 

 

Authorities:
 

 

Yahya v. Lexmark International, Inc. (Ky. App., 2003)
 

“Kentucky has adopted the “bare bones” approach to jury instructions. Rogers v. Kasdan, Ky., 612 S.W.2d 133. It is the duty of counsel to flesh out the instructions in closing arguments to the extent and to the measure that the respective counsel deem appropriate. Humana, Inc. v. Fairchild, Ky. App., 603 S.W.2d 918”
 

We cannot find a direct quote as used in Yahya above, but in Humana, Inc. v. Fairchild, Ky. App., 603 S.W.2d 918, the court did say:
 

“It is the respective counsel’s duty to see to it that the jury clearly understands what such instructions mean, or do not mean. Collins v. Galbraith, Ky., 494 S.W.2d 527 (1973)
 

But in Collins v. Galbraith the court held:
 

   “ In conclusion, it may be well to mention that whenever counsel feels that jurors might draw inferences that are not warranted by the specific terminology of the instructions, his opportunity to guard against it comes in the closing argument.
 

If instruction are to be kept concise and to the point, as they should be, their supplementation, elaboration and detailed explanation fall within the realm of advocacy.
 

Contrary to the practice in some jurisdictions, where the trial judge comments at length to the jury on the law of the case, the traditional objective of our form of instructions is to confine the judge’s function to the bare essentials and let counsel see to it that the jury clearly understands what the instructions mean and what they do not mean.
 

 

 

Harp v. Commonwealth, No. 2007-SC-000288-MR (Ky. 10/23/2008) (Ky., 2008)
Our precedent of longstanding leaves no doubt that we have adhered to the “bare bones” principle of jury instructions.9 Indeed, former Chief Justice Palmore apparently coined the “bare bones” phrase in a 1974 civil case, although the phrase has been similarly applied to criminal cases.10 We have explained this bare bones approach to instructions as meaning that as a general matter, “evidentiary matters should be omitted from the instructions and left to the lawyers to flesh out in closing arguments.”11 Or, as we more recently explained, jury instructions should tell the jury what it must believe from the evidence in order to resolve each dispositive factual issue while still “providing enough information to a jury to make it aware of the respective legal duties of the parties.12
        We remain committed to the bare bones instructional principle, confident that it works well in most cases to “pare down unfamiliar and often complicated issues in a manner that jurors, who are often not familiar with legal principles,
Page 7
can understand.”13 But instructions must not be so bare bones as to be misleading or misstate the law.14
        As mentioned, we have determined that the law requires specific identifiers to be placed in each count in a case involving multiple counts of the same offense. So a failure to include at least some basic evidentiary identification in the sexual abuse instructions at hand was a misstatement of the law. Furthermore, the lack of specificity in the instructions readily lends itself to a potential unanimity problem.15
        No doubt able counsel could—and in this case, did—attempt to “flesh out” the generic sexual abuse instructions in closing argument by telling the jury which specific act of sexual abuse was covered by which specific count of the charges. And, in dictum, we have appeared to approve of such attempted corrective and curative action by the Commonwealth.
In essence, our imprecise and unfortunate dictum in Bell can be taken to stand for the proposition that able counsel may “cure” a defective jury instruction in closing argument. But we very recently made it clear in a unanimous opinion that jury instructions, which a jury is presumed to follow, must be based solely upon the evidence; and “an attorney’s arguments do not constitute evidence.”20
Page 9
Therefore, we reached the plain conclusion that “the arguments of counsel are not sufficient to rehabilitate otherwise erroneous or imprecise jury instructions.”
the concept of fleshing out bare bones instructions permits counsel to attempt to explain the instructions to the jury but does not permit counsel to attempt to correct erroneous jury instructions.
 

Bell is overruled to the extent that its dictum suggests that a failure to include the requisite specific identifying language in jury instructions can be rendered a harmless error by the curative powers of counsel’s closing argument
 

 

 

Olfice, Inc. v. Wilkey, 173 S.W.3d 226 (KY, 2005)
 

 Following Cox, several other decisions from this Court and the Court of Appeals have reaffirmed our adherence to the use of bare bones instructions. Meyers v. Chapman Printing Co., Inc., 840 S.W.2d 814, 824 (Ky.1992). (“In instructing juries, Kentucky uses the `bare bones’ method…. `[Instructions] should not contain an abundance of detail, but should provide only the bare bones of the question for jury determination.”‘) Rogers v. Kasdan, 612 S.W.2d 133, 136 (Ky.1981).
(“The general rule for the content of jury instructions on negligence is that they should be couched in terms of duty. They should not contain an abundance of detail, but should provide only the bare bones of the question for jury determination.”) King v. Grecco, 111 S.W.3d 877, 882 (Ky.App.2002). (“[I]t is apparent that Kentucky is not a jurisdiction which favors instructing the jury at length regarding every subtle nuance of the law which may be relevant to a particular case.”)
        In addition to case law, several commentators have enunciated similar principles.
        [T]he function of instructions is only to state what the jury must believe from the evidence in order to return a verdict in favor of the party who bears the burden of proof. In Kentucky, the content of jury instructions on negligence should be couched in terms of duty. They should not contain an abundance of detail, but should provide only the `bare bones’ of the question for jury determination.
Page 229
        Kurt A. Philips, Jr., 7 Kentucky Practice: Rules of Civil Procedure Annotated, § 51 (5th ed.1995) (citing Webster v. Commonwealth, 508 S.W.2d 33, 36 (Ky.1974)). Justice Palmore likewise observed:
        The basic function of instructions in Kentucky is to tell the jury what it must believe from the evidence in order to resolve each dispositive factual issue in favor of the party who bears the burden of proof on that issue. In other jurisdictions, as at common law, it may be appropriate to say that the purpose of instructions is to advise the jury on the law of the case, but not in this state.
        Justice Charles M. Leibson, “Legal Malpractice Cases: Special Problems in Identifying Issues of Law and Fact and in the Use of Expert Testimony,” 75 Ky. L.J. 1, 40 (1986) (quoting John S. Palmore, Kentucky Instructions to Juries, § 13.01 (1977)).
        From the case law and commentary, it is clear that Kentucky law mandates the use of “bare bones” jury instructions in all civil cases. See Lumpkins v. City of Louisville, 157 S.W.3d 601 (Ky.2005). The Court of Appeals in this case correctly stated that jury instructions should refrain from elaborating on an abundance of detail, but still strike the proper balance in providing enough information to a jury to make it fully aware of the respective legal duties of the parties. King v. Ford Motor Co., 209 F.3d 886 (6th Cir.2000).
Indeed, “bare bones” instructions serve the courts and juries well because they pare down unfamiliar and often complicated issues in a manner that jurors, who are often not familiar with legal principles, can understand.
        ”Bare bones” instructions are proper if they correctly advise the jury about “what it must believe from the evidence in order to return a verdict in favor of the party who bears the burden of proof” on that issue. Meyers, 840 S.W.2d at 824; Leibson, supra. The question to be considered on an appeal of an allegedly erroneous instruction is whether the instruction misstated the law. Meyers, supra, at 823. It is within a trial court’s discretion to deny a requested instruction, and its decision will not be reversed absent an abuse of that discretion. King, supra.
        Thus, the question herein is whether the instructions misstated the law by failing to sufficiently advise the jury “what it [had to] believe from the evidence in order to return a verdict in favor of the party who [had] the burden of proof.” Meyers, supra.
 

Lumpkins v. City of Louisville, No. 2003-SC-0267-DG (KY 3/17/2005) (KY, 2005)
 

The Kentucky practice of “bare bones” instructions applies to all litigation including civil rights cases. The concept permits the instructions to be “fleshed out” in closing argument. See Rogers v. Kasdan, 612 S.W.2d 133 (Ky. 1981).
 

 

 

Perdue v. CSX Transportation, Inc., No. 2006-CA-000724-MR (Ky. App. 4/27/2007) (Ky. App., 2007)
 

 This jurisdiction “uses the `bare bones’ method. This method does not include explaining evidentiary matters or evidentiary presumptions with the instructions. `They should not contain an abundance of detail, but should provide only the `bare bones’ of the question for jury determination. This skeleton may then be fleshed out by counsel on closing argument.’ Meyers v. Chapman Printing Co., Inc., 840 S.W.2d 814, 824 (Ky. 1992) (Citation omitted.). Instructions must advise the jury “what it must believe from the evidence in order to return a verdict in favor of the party who bears the burden of proof.” Meyers, id.
 

Our question on review is not whether Perdue’s tendered instructions stated the substantive law more specifically, but to determine whether the delivered instruction misstated the law. Olfice, Inc. v. Wilkey, 173 S.W.3d 226 (Ky. 2005).
 

“Bare bones” jury instructions must be given with the understanding that they are merely a framework for the applicable legal principles. It becomes the role of counsel, then, to flesh out during closing argument the legal nuances
Page 11
that are not included within the language of the instruction. See Rogers [v. Kasdan], 612 S.W.2d [133,] 136 [(Ky. 1981)]. This principle was aptly stated by Justice Palmore in the Cox decision, wherein he explained what a lawyer should do if he or she is not satisfied with the trial court’s instructions: “[I]f counsel felt that the jury was too thick to get the point all he had to do was to explain it in his summation.” Cox [v. Cooper], 510 S.W.2d [530,] 535 [(Ky. 1974)].
The trial court’s instruction correctly stated the law, and the court did not abuse its discretion in refusing to give Perdue’s tendered instruction that exceeded Kentucky’s “bare bones” approach and “gave undue prominence to facts and issues.” See Rogers v. Kasdan, 612 S.W.2d at 136.
 

…The instructions were not misleading and properly guided the jury in its determination of whether the brake malfunctioned on September 26 and caused Perdue’s injuries. Perdue was free to argue during his closing argument about any of the particulars omitted from the instructions. The trial court did not abuse its discretion in failing to deliver Perdue’s tendered instructions.

Ky. Sup. Ct. rules on: LEARNED TREATISES VS. JUDICIAL NOTICE – also adjudicative facts-dictionary definition

December 21st, 2008

 


The following discussion concerns the difference between admission of evidence under the Learned Treatise rule versus admission under the Hearsay exception under the Judicial Notice rule.  Also discussion are “adjudicative fact” and the rules for “Judicial Notice of a Law.”  The first case allows introduction of a “dictionary definition”. 

 

Ky. Supreme Court –  2007-SC-000006-MR.pdf  TO BE PUBLISHED   MCCRACKEN  CIRCUIT COURT   Dec. 18, 2008
 STANLEY STOKES
 V.
 COMMONWEALTH OF KENTUCKY
 OPINION OF THE COURT BY JUSTICE NOBLE – AFFIRMING ABRAMSON, J., CONCURS BY
SEPARATE OPINION.  CUNNINGHAM, J., CONCURS BECAUSE THE INFORMATION GIVEN TO THE JURY WAS ONLY
THE UNCONTROVERTED  DEFINITION OF AN OFFENSE ALREADY INTRODUCED, NOT
NEW “PROOF,” AND WAS  THEREFORE NOT ERROR– HARMLESS OR OTHERWISE
LawReader NOTE:
This ruling notes the difference in the use of evidence admitted by the court under Under KRE 803(18), known as the Learned Treatise Rule and evidence admitted purely by Judicial Notice.
1) Learned Treatise Rule – KRE 803(18),:”The judicial notice used in this rule goes only to whether the document is a reliable authority, not that the statements read are adjudicative facts.”
2) Judicial notice under KRE 201, however, concerns only adjudicative facts . KRE 201(a) . If a fact is judicially noticed under this rule, the jury must be instructed to accept such fact as conclusive. KRE 201(g)”
******
“During rebuttal, the Commonwealth asked to be allowed to read the
definition of “psychogenic” from an unnamed medical dictionary as a learned treatise pursuant to KRE 803(18) . Defense counsel objected that under the rule, a learned treatise must be introduced through an expert witness .
 

In response, the Commonwealth replied that the trial court could simply take judicial notice of the definition.

 

The trial court ruled that no expert would be required if it took judicial notice that the dictionary was a learned treatise, to which defense counsel again made proper objection and moved for a mistrial, which was overruled .

 

The trial court then informed the jury that it was recognizing “this book,” which still remained unidentified, as a learned treatise, and that what the Commonwealth was going to read was reliable and could be considered during deliberations. The Commonwealth then defined psychogenic as “produced or caused by psychological factors .”

 

Appellant argues that the trial court abused its discretion by taking
“judicial notice” of a medical dictionary as a “learned treatise .” While there is much confusion of terms here, the trial court committed no error when it
allowed the Commonwealth to read a definition of “psychogenic” into the
record.

 

Under KRE 803(18), known as the learned treatise rule, statements from
such a document are not excluded by the hearsay rules, even though the
declarant is not available as a witness, when these statements are used in questioning an expert witness, either on direct or cross, if the statements are established as a reliable authority either by the witness, other expert testimony, or by judicial notice. The judicial notice used in this rule goes only to whether the document is a reliable authority, not that the statements read are adjudicative facts. As always, the weight of the authority must be determined by the trier of fact.

 

Judicial notice under KRE 201, however, concerns only adjudicative
facts . KRE 201(a) . If a fact is judicially noticed under this rule, the jury must be instructed to accept such fact as conclusive. KRE 201(g) . To be properly judicially noticed, the fact must not be subject to reasonable dispute, because it is generally known or can be determined by resort to sources whose accuracy cannot be reasonably questioned. KRE 201 (b) .

 

A trial court may take judicial notice of the definition of a word as an
adjudicative fact where the definition of a term is indisputable, that is, where it is “capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned .” KRE 201(b)(2) .

 

Essentially, KRE 201 allows judicial notice to be taken of “facts `which can be determined from unimpeachable sources.’ Robert G. Lawson, The Kentucky Evidence Law Handbook §1 .00[3][c], at 10 (4th ed. 2003) (quoting 1 Christopher B. Mueller &, Laird C. Kirkpatrick, Federal Evidence § 51 (2d ed. 1994)).

 

As Professor  Lawson has noted, such sources include general authorities such as “encyclopedias, calendars, maps, medical and historical treatises, almanacs, and public records .” Id. Beyond doubt, dictionaries fall within the same class of “unimpeachable sources,”- and thus the definitions contained in them may be judicially noticed, so long as they are indisputable. See Comerica Bank v. Lexington Ins. Co., 3 F.3d 939, 944 (6th Cir. 1993) (holding that district court was within its discretion to take judicial notice of the dictionary definition of a word); B.V.D . Licensing Corp. . Body Action Design, Inc ., 846 F.2d 727, 728 (Fed. Cir. 1988) (“Courts may take judicial notice of . . . dictionaries .”) ; Richard
H. Underwood &, Glen Wissenberger, Kentucky Evidence 2005-2006 Courtroom Manual 44 (2005) (“Judicial notice is taken of the English language . : .Representative authoritative sources for verification [of facts] include such materials as historical works, science and art books, language and medical journals and dictionaries, calendars, encyclopedias . . . .” (emphasis added)) ; see also Werk v. Parker, 249 U.S . 130, 132-33 (1919) (“We deem it clear, beyond question . . . that the court was justified in taking judicial notice of facts that appeared so abundantly from standard works accessible in every considerable library.”) ; Samuel A. Thumma and Jeffrey L. Kirchmeier, The Lexicon Has Become a Fortress: The United States Supreme Court’s Use of Dictionaries, 47 rule are met:
Id. at 501 . ff. L. Rev. 227, 248 (1999) (noting that “by 1920, the
(Supreme) Court had decided that taking judicial notice of dictionary
definitions unquestionably was proper”) .

 

Indisputability of a definition. can be buttressed by cross-referencing the definition with other dictionaries or authorities. Specifically, judicial notice may be taken of the definitions of medical terms from a medical dictionary, Campbell v. Shelton, 727 N.E.2d 495, 502 (Ind. Ct.App. 2000), and those definitions are admissible into evidence in a jury trial, assuming of course that the other requirements of the judicial notice

 

We are mindful that there is a distinction between referring to a dictionary in a fact finding setting for the purpose of judicially noticing the meaning of a word, on one hand, and consulting such a source upon appellate review to discern the meaning of a term for purposes of, for example, statutory construction. . . .

 

Nevertheless, the preceding authority reflects that our courts generally regard dictionaries as `sources whose accuracy cannot reasonably be questioned .’ See Evid. R. 201 (a) .

 

We conclude, therefore, that a court may take judicial notice of a dictionary definition of a word, so long as the other conditions set out in Evid. R. 201 are met.

 

No suggestion has been made that the definition read to the jury in this case was not accurate, and the Appellant did not object to the content of the definition, only to the medical dictionary being treated as a learned treatise .

 

The trial court intended to take judicial notice of the meaning of the term
“psychogenic,” and found a medical dictionary to be an indisputable source of the definition . Since the accuracy of the definition was readily ascertainable, the trial court did not abuse its discretion in allowing it to be read to the jury.

 

Whether it was appropriate for this evidence to be introduced during rebuttal is perhaps another matter, but this has(to)  rise to the level of a palpable error.

 

The Appellant also takes Issue  with the use the Commonwealth made of
this definition in closing argument.

 

Since it was appropriate for the trial court to take judicial notice of the definition of “psychogenic,” it follows that it was appropriate for the Commonwealth to comment on that definition in closing argument, provided its inferences were reasonable .”
 

 

Ky. Supreme Court –  2007-SC-000377-MR.pdf  TO BE PUBLISHED  FAYETTE CIRCUIT  Dec. 18, 2008
 ONDRA LEON CLAY
 V.  
COMMONWEALTH OF KENTUCKY
 OPINION OF THE COURT BY JUSTICE NOBLE – AFFIRMING
LAWREADER NOTE:
 

Taking judicial notice of the law is usually prohibited, but exceptions are discussed when this is allowed.
“A judicially noticed fact must be one not subject to reasonable dispute” because it concerns a matter “[g]enerally known” or a matter “[c]apable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned
 ”[a]nything which can be `looked up’ in an authoritative source is a candidate for this type of judicial notice.
The judge should ask two questions :
(1) Does the source provide the precise fact to be noticed; and
(2) Is the source accurate
 When a court or an agency finds facts concerning the immediate parties-who did what, where, when, how, and with what motive or intent the court or agency is performing an adjudicative function, and the facts are conveniently called adjudicative facts.
…taking judicial notice of “the law” during the course of a trial is tantamount to instructing the jury prior to the close of the evidence.
 Obviously, a court could still take judicial notice of a law, if that law constituted an adjudicative fact in a particular case . An example of this would be proving the legal drinking age if there was a dispute as to what that age is, or any other time that it might be necessary to prove what the law is as a question of fact.

 

Other authorities discussing adjudicative facts:
Hacker v. Baesler, 812 S.W.2d 706 (Ky., 1991)
A rezoning ordinance is not a general law, but represents a decision on reclassification of a specific property, a decision of adjudicative fact which must be based on substantial evidence. Moreover, the General Assembly has expressly provided for judicial review of the outcome. None of these characteristics is found in bills of Congress or the General Assembly.
 

 Hume v. Franklin County Fiscal Court (Ky. App., 2003)  NO. 2002-CA-000947-MR.
 In this case, the fiscal court’s finding that the proposed zone map amendment is in agreement with the adopted comprehensive plan was clearly a determination of an adjudicative fact. Given that the fiscal court did not conduct its own trial-type hearing but instead relied on that conducted by the planning commission, it was required by McKinstry and McDonald to make any decision regarding an adjudicative fact on the basis of the record developed by the planning commission
 

Sullivan University System, Inc. v. Louisville Metro Board of Zoning Admustment, No. 2007-CA-001794-MR (Ky. App. 8/8/2008) (Ky. App., 2008)
We are persuaded that the Board’s findings of fact in this case were sufficient to allow for a meaningful review of the adequacy of the proceedings. The essential adjudicative fact before the Board was whether Sullivan’s use of the subject property was a permitted use — that of a library — regardless of its for-profit status as a user. The evidence before the Board indicated that the Lowell Avenue structure housed no literary or other media materials for student or faculty reference or loan. It provided no work space for students or faculty. No staff members were assigned to the building to assist students or faculty with research or to provide any library services whatsoever. Moreover, a Sullivan employee assigned to the property described the house as merely a “computer tech office.” This evidence was more than adequate to support the Board’s decision.
U.S. v. Mentz, 840 F.2d 315 (C.A.6 (Ohio), 1988)
In a criminal trial, the trial judge and the jury have well-defined roles, refined over many years of constitutional adjudication. The trial judge instructs the jury on the law applicable to the issues raised 5 and, in appropriate circumstances, may comment on the evidence. United States v. White Horse, 807 F.2d 1426, 1430 (8th Cir.1986); United States v. Johnson, 718 F.2d 1317, 1322, 1324-25 (5th Cir.1983) (en banc); 8A J. Moore, W. Taggart & J. Wicker, Moore’s Federal Practice p 30.05, at 30-40 (1987). The jury then independently determines the facts, and applies the law to those facts, in reaching its fateful decision. White Horse, 807 F.2d at 1430; Johnson, 718 F.2d at 1325. See also 2 C. Wright, Federal Practice & Procedure Sec. 485, at 711 (1982). However, the trial judge invades the jury’s province when, instead of simply instructing on the law, he applies the law to facts he has determined.
Page 320
See White Horse, 807 F.2d at 1430 (“when the judge is no longer deciding the law that applies to the evidence, but rather is applying the law to the facts–facts that are determined after assessing the probative value of evidence introduced at trial–the judge has invaded the jury’s province.”). 6
        There can be little doubt that a trial judge commits error of constitutional magnitude “when he instructs the jury as a matter of law that a fact essential to conviction has been established by the evidence, thus depriving the jury of the opportunity to make this finding.” Id. at 1429 (citation omitted). This is tantamount to a directed verdict for the prosecution, a result that is condemned by the Constitution. Martin Linen Supply Co., 430 U.S. at 572-73, 97 S.Ct. at 1355; United Brotherhood of Carpenters & Joiners of America, 330 U.S. at 408, 67 S.Ct. at 782.
 

Taylor v. Charter Medical Corp., 162 F.3d 827 (C.A.5 (Tex.), 1998)  even though a court may take judicial notice of a “document filed in another court … to establish the fact of such litigation and related filings,” 12 a court cannot take judicial notice of the factual findings of another court. This is so because (1) such findings do not constitute facts “not subject to reasonable dispute” within the meaning of Rule 201; 13 and (2) “were [it] permissible for a court to take judicial notice of a fact merely because it had been found to be true in some other action, the doctrine of collateral estoppel would be superfluous.”
 

We agree [with the Second and Eleventh Circuits] that courts generally cannot take notice of findings of fact from other proceedings for the truth asserted therein because these are disputable and usually are disputed. However, it is conceivable that a finding of fact may satisfy the indisputability requirement of Fed.R.Evid. 201(b). This requirement simply has not been satisfied in this case. 17
        It is not necessary at this point for us to determine whether courts in this circuit are never permitted to take notice of the factual findings of another court or are permitted to do so on rare occasion, subject to the Rule 201′s indisputability requirement, because the Milonas courts’ state actor determination cannot clear the rule’s “indisputability” hurdle. 18 That Old Provo Canyon was a state actor for the purposes of the Milonas suit (let alone for the purposes of the present suit) was certainly open to dispute and was, in fact, disputed by the parties. That determination simply was not the type of “self-evident truth[ ] that no reasonable person could question, [a] truism[ ] that approach[es] platitude[ ] or banalit[y],” as required to be eligible for judicial notice under Rule 201. 19
        In addition, the Milonas courts’ state actor determination is not an “adjudicative fact” within the meaning of Rule 201. Whether a private party is a state actor for the purposes of § 1983 is a mixed question of fact and law
Page 831
and is thus subject to our de novo review. 20 Rule 201 authorizes the court to take notice only of “adjudicative facts,” not legal determinations. 21 Therefore, a court cannot take judicial notice of another court’s legal determination that a party constituted a state actor for the purposes of § 1983: That determination is neither an adjudicative fact within the meaning of Rule 201 nor beyond “reasonable dispute.”
 

KRE 201   JUDICIAL NOTICE OF ADJUDICATIVE FACTS           
(a)    Scope of rule.  This rule governs only judicial notice of adjudicative facts.
(b)    Kinds of facts.  A judicially noticed fact must be one not subject to reasonable dispute in that it is either:
(1)    Generally known within the county from which the jurors are drawn, or, in a non-jury matter, the county in which the venue of the action is fixed; or
(2)    Capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.
                (c) When discretionary.  A court may take judicial notice, whether requested or not.
                (d) When mandatory. A court shall take judicial notice if requested by a party  and supplied with the necessary information.
   (e) Opportunity to be heard.  A party is entitled upon timely request to an opportunity to be heard as to the propriety  of taking judicial notice and the tenor of the matter noticed. In the absence of prior notification, the request may be made after judicial notice has been taken.
(f)      Time of taking notice. Judicial notice may be taken at any stage of the proceeding.
(g)    Instructing the jury.  The court shall instruct the jury to accept as conclusive any fact judicially noticed.
KRE 803 HEARSAY EXCEPTIONS: AVAILABILITY OF DECLARANT IMMATERIAL     
The following are not excluded by the hearsay rules, even though the declarant is available as a witness:
(18)Learned treatises. To the extent called to the attention of an expert witness upon cross-examination or relied upon by the expert witness in direct examination, statements contained in published treatises, periodicals, or pamphlets on a subject of history, medicine, or other science or art, established  a reliable authority by the testimony or admission of the witness or by other expert testimony or by judicial notice. 
If admitted, the statements may be read into evidence but may not be received  as exhibits.

See List of Wall Street’s Ponzi scheme victims who were swindled by Bernard Madoff

December 20th, 2008

The fallout from Bernard Madoff’s alleged Ponzi scheme reverberated around the world as the list of investors facing losses widened. Among the biggest losers were charities, hedge funds, and banks in Europe and Asia. Below, see some of the most exposed investors and sort by the amount of potential losses. –Updated 12/19/08 

http://s.wsj.net/public/resources/documents/st_madoff_victims_20081215.html 

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Court of Appeals issues 23 important decisions this week – Ky. Supreme Court issues 14 decisions this week – See topics discussed.

December 20th, 2008

 

LawReader subscribers can access these cases with keywords, synopsis and links to the
 

full text at COURT OF APPEALS DECISIONS FOR DEC. 19, 2008  –   or     

 

 KY. SUPREME COURT DECISIONS FOR DECEMBER, 2008
                     

Non-subscribers can sign up for LawReader by going to SIGN UP – PRICING 
 

                                Topics discussed this week include:
 

SUPREME COURT –
worker’s compensation – timely notice of injury
 

subsequent employment after award – reopening of claim
 

improper reopening of proof to allow new physician evaluation of claimant
location for criminal trial – waiver –proper forum – double jeopardy
 

duty to notify parent on arrest of minor – Miranda – cross-examination re: prior inconsistent statement – probable cause
 

Judicial notice – learned treatises – reopening proof once jury sent out to deliberate may be allowed
 

Batson challenge – judicial notice – adjudication facts – judicial notice of a law
 

Miranda – Public safety exception – double jeopardy when two charges for one possession of firearm – guilty plea does not preclude double jeopardy appeal
 

statute of limitation for recoupment of Medicaid overpayments- appeal allows raising of a law not cited in court
 

COURT OF APPEALS -
 

Reformation of mortgage –
 

 statute of limitations after federal lawsuit dismissed –
 

judge’s response to jury’s question –instructions-issue preclusion –
 

statute of limitation of parties not named in prior federal lawsuit—
 

Appointment of special commissioner –
 

waiver-proof of damages for building construction defects—
 

Appeal procedures –
 

negligent supervision not supported by a tort as required —
 

 compliance with mediation rules mandating attendance of party with full settlement authority –
 

contempt of court- criminal contempt/civil contempt—
 

premature summary judgment when party had not completed discovery—
 

trip and fall case –open and obvious standard –visibility factor is vital—
 

wife not entitled to continuance at final divorce hearing based on judges review of her consistent dilatory actions—
 

shared custody –
 

court erred in denying child support retroactive to motion –
 

medical expenses allocation—
 

open records –request for attorney fees and costs due to delay in compliance—
 

juvenile commitment –waiver of separate hearings – findings of act—
 

ssi payments may be used in calculation of child support obligation –
 

court did not make record or make record-remanded for due process hearing—
 

 worker’s compensation – current employer held liable for injury to worker which occurred while he was working for prior employer—
 

flawed jury verdict should have been sent back to jury—
when criminal defendant is entitled to free copy of the record—
 

child sexual abuse – use of dog to touch child’s privates –
 

marihuana use not generally admissible, possession of pornography and sex toys not admissible—
 

youthful offender eligible for probation consideration upon resentencing at age 18
        
 

 

Jon Draud , Education Administrator who has been ill recently has resigned.

December 19th, 2008

FRANKFORT, Ky. —Gov. Beshear issued the following statement:

“I want to thank Jon Draud for his distinguished career and longstanding commitment to public service in Kentucky, particularly our children. I also wish to extend to Jon my best wishes for his continued and full recovery. As this transition of leadership occurs, I look forward to working with the Board of Education as a new leader is chosen who will move Kentucky forward in our efforts to create the best educational system in America. I am committed to doing whatever it takes to reach that goal – for our children and for our state’s future.” 

Some Judges Delay Swearing-In Of New Citizens, Report Says

December 18th, 2008

 
 

By Spencer S. Hsu  Washington Post  Thursday, December 18, 2008

Federal judges in some parts of the United States have delayed the swearing-in of new citizens, keeping millions of dollars in fees that would otherwise go to immigration officials if they were allowed to administer the oaths instead, according to a new government report and immigration officials.
In one of the nation’s busiest courts, a judge’s delay caused nearly 2,000 people to not receive the oath in time to register for November’s general election, USCIS ombudsman Michael Dougherty said in a 13-page report released yesterday.
The finding adds a new twist to long-standing complaints that applicants for citizenship face long waits, poor service and different treatment depending on which immigration office handles their paperwork. While the USCIS has eased huge backlogs created in summer 2007, with steps such as speeding up FBI security background checks, the new bottleneck points to a turf battle with U.S. district courts.
Although “federal courts are very responsive” generally to USCIS requests for naturalization ceremonies, Dougherty reported, some “court officials denied USCIS the opportunity to naturalize persons in time to vote in the recent general elections” and “otherwise engaged in conduct inconsistent with the letter or the spirit” of the nation’s immigration laws.
In the most dramatic case, immigration officials asked a U.S. district judge in the summer to schedule more ceremonies or allow the agency to administer the oath itself to new citizens, but the request was denied, the report said.
A USCIS district director was told that the court had “done more than its share” in swearing in new citizens, the report said.
Dougherty did not name the judge, saying only that the case arose in New York, Los Angeles, Chicago or Detroit, four of the 41 U.S. court districts where courts retain exclusive jurisdiction over naturalization cases.
“Courts that choose to assert exclusive authority to naturalize new citizens should also embrace a customer service ethic that recognizes the singular importance of oath ceremonies,” Dougherty said in a news release issued by his office’s parent agency, the Department of Homeland Security. He said USCIS and the courts should set clear rules to speed up the process.
Courts have 45 days after USCIS approves a citizenship application to administer an oath of allegiance, and the agency reimburses them $14.09, out of fees paid by the applicant, for each oath they perform. But the agency can often administer the oaths more quickly and cheaply, saving the money for itself.
Still, USCIS officials “are very reliant on the cooperation of court officials” to meet naturalization targets, and they complain about “a lack of parity” in power, the report said.
Prakash Khatri, who was Dougherty’s predecessor until February, said the judiciary “has held USCIS hostage for a court fee that these jurisdictions are not giving up,” Khatri said. People wait for months after their naturalization applications are approved, he said, “only to find that the delay is a direct result of judges not scheduling naturalization ceremonies.”
U.S. District Judge John R. Tunheim of Minneapolis, who chairs a federal judiciary committee that oversees court administration, called the report’s conclusion “ludicrous” and said its examples are unsubstantiated and in some cases “little more than rumor and innuendo.”
“Certainly the courts will work very closely with USCIS, just as we have for years,” Tunheim said. He added that courts send immigration fees to a judiciary general-fund account in Washington: “The idea that we’re doing it for money seems to me ludicrous. None of us can pay much attention to all these transfers that go back and forth.”
USCIS has made progress in clearing huge application backlogs. Since April, the agency and the FBI have cut the backlog of immigration cases pending security background checks from 275,000 to 60,000, with a goal by June of handling all name checks against FBI records within 90 days.
After the number of naturalization applications nearly doubled in 2007, to 1.4 million, driving up average processing times to more than 13 months, USCIS reported in the fall that the average time was back to 8.8 months.
By October, about 475,000 applications were pending more than nine months, 192,000 more than 18 months and 118,000 more than two years, Dougherty reported

New Rules say Government Contractors Must Disclose ‘Credible Evidence’ Of Fraud, Abuse – Failure to comply could result in disbarment for attorneys

December 18th, 2008

 

Dec. l8, 2008    Government, Inc. by Robert Harrow, Jr.

 

Starting today, all federal contractors on deals lasting four months or more and worth $5 million or more (including those outside the U.S. and those providing commercial items) must blow the whistle on criminal violations or overcharging.

Such contractors also will have to “establish and maintain specific internal controls to detect and prevent improper conduct,” according to the rules spelled out in the Federal Register.

 

The possible consequences of not blowing the whistle? Debarment and suspensions.

Yes, it’s quite a change. Even the government acknowledges it represents a a “major depature” from the past. Naturally, Government Inc., in contemplating the importance of getting the most out of taxpayer money, applauds tight oversight and clean contracting.

The contracting abuses in recent years are well documented. No one knows the true extent of fraud and abuse in the $450 billion procurement universe these days. Consider some of the Justice Department’s recent False Claims cases. This rule could give prosecutors another sharp edge to apply to their cases.

 

But.

It’s important to examine the impact here. Will the government be able to enforce this sweeping new mandate in a fair and equitable way? Does it have the resources? Good policy can’t just be a paper thing, as you all well know.

 

Fred Levy and Michael Scheininger, procurement and white collar fraud specialists at the McKenna, Long & Aldridge law firm, reached out with a few thoughts that Government Inc. found interesting. The bottom line: Contractors are worried.

 

“Contractors are concerned about the difficulty and expense that will be entailed in determining whether events are reportable as fraud–particularly civil fraud–which as a legal matter is an elastic concept, and the consequences of the latter being second guessed,” they said in a email note. “Contractors also worry that reported events will introduce prolonged uncertainty about liability as IGs and DoJ take months and years to resolve matters that are reported.”

 

On the other, the government defends its new push vigorously, saying contractors have done a dismal job of self-regulation. From the Federal Register:

 

“There is no doubt that mandatory disclosure is a ”sea change” and ”major departure” from voluntary disclosure, but DoJ and the OIGs point out that the policy of voluntary disclosure has been largely ignored by contractors for the past 10 years.”

 

Franklin Circuit Judge Phillip J. Shepherd Denies Early-release Injunction

December 18th, 2008

 

Attorney General Jack Conway’s office suffered a setback in his attempt to end the Justice Cabinet’s attempt to cut prison populations by liberalizing early release procedures.  This issue is one of the first battles between “conservatives” who seek to increase prison populations and “moderates” who believe Kentucky must reduce its half billion dollar a year expenditures for its 13 prison facilities.  Amendments to the criminal code in the last 25 years have filled our prisons due to mandatory sentencing policies, and get tough on drug users policies.

 

The state can continue a program under which more than 1,800 convicted felons have been released from prison earlier than under previous rules, Judge Shepherd ruled December 17th.

 

The request for a temporary injunction sought to shut down the program.

 

Prosecutors have argued that releasing the inmates puts the public at risk.

This year, lawmakers put language in the state budget to change how the Department of Corrections calculates when people get out of prison. The goal was to cut spending on prison costs.

 

In challenging the policy, Assistant Attorney General Tad Thomas presented evidence that several men were charged with crimes — including bank robbery, armed robbery and weapons possession — after release from prison under the rules.

 

But Shepherd said the new policy was not the cause of those crimes.

 

Shepherd noted that statistics show about 30 percent of people released from prison commit new crimes. There is no evidence the people released under the new policy are offending again at a higher rate, he said.

 

Mark Hebert suggests potential nominees for U.S. Attorney positions

December 17th, 2008

Mark Hebert reports that the following attorneys names are being bandied about as possible nominees for appointment as U.S. Attorney in an Obama Administration.
Benham Sims: Former District Judge.
David Kaplan: Chief of Staff for House Speaker Jody Richards.

Pat Boldin: Federal public defender.
Steve Reed: Former U.S.
Attorney for Western District.                                                  

David Hale. Respected Louisville lawyer

LawReader invites other nominees…e-mail us at:  firstjudge@aol.com

 

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Muslim woman jailed for refusing to remove head scarf in Georgia courthouse

December 17th, 2008

ATLANTA (Dec. 17) – A Muslim woman was arrested for refusing to take off her head scarf at a courthouse security checkpoint said Wednesday that she felt her human and civil rights were violated.
 

A Georgia judge ordered Lisa Valentine, to serve 10 days in jail for refusing to take her head scarf off in court Tuesday. The Muslim, who had violated a policy that prohibits any headgear, was released Wednesday after an advocacy group called for a federal probe into the matter.

How would you rule?   

U.S. Supreme Court considers ban on depictions of animal cruelty

December 17th, 2008

WASHINGTON, Dec. 17  – The U.S. Supreme Court will have the last word on a federal law that bans the sale of films or photographs that show animals being tortured.

A federal appeals court ruled that the law was unconstitutional because it limited freedom of speech. The decision freed the only person convicted under the law, Robert Stevens, a Virginia man who sold videos of pit bulls killing pigs.

 

Stevens was tried in 2005 by a jury in Pittsburgh that took only 45 minutes to find him guilty.

 

The Justice Department asked the highest court to review the case, the Pittsburgh Post-Gazette reported Wednesday. The Solicitor General, who represents the government before the Supreme Court, filed a petition Monday.

 

In the petition, government lawyers say that there is a “moral interest in suppressing depictions that have no social value and that are created solely to depict suffering by animals.”

 

Experts say the high court is more likely to hear this case because the petition comes from the Justice Department and the constitutionality of a federal law is at stake. If the court decides not to hear the case, the appeals court ruling would stand

Gov. Beshear Announces E-Warrant Program a Success

December 17th, 2008

 Dec. 17, 2008

 

 

FRANKFORT, Ky. – An electronic, interlinked system that went online this year has revolutionized the way Kentucky law enforcement and criminal justice professionals access and serve warrants, summonses and other related documents, Gov. Steve Beshear announced today.

Nearly a year after it was first implemented, more than 62 percent of the new warrants entered into the E-Warrants system have been served, compared with less than 10 percent served under the old system.

The system, which first went live in Jefferson County in January 2008, has since been launched in Campbell, Scott, Bourbon and Woodford counties.  The program is expected to launch in Fayette County in early 2009, and be active statewide within the next 24 months.

Kentucky is one of only a handful of states that utilize an electronic system to manage certain types of warrants.

Prior to use of this system, as many as 300,000 warrants were outstanding on any given date in Kentucky, primarily because the warrants were paper-based and reside in each county with no statewide mechanism for access.

“The E-Warrant system is modernizing policing in the commonwealth,” Gov. Beshear said.  “Kentucky continues to be a leader in utilizing technology to greatly enhance efficiency and improve public safety.  Not only will officers have immediate access to outstanding warrants, but pertinent data is collected and stored in a searchable format, providing an invaluable tool for law enforcement.”

In Jefferson County, for example where more than 72 percent of new warrants have been served – a warrant was served on a suspect just 17 hours after a criminal complaint was issued for murder, 1st degree robbery and evidence tampering.  Law enforcement officers ran a search on the E-Warrants system and found the defendant listed as a witness in a separate criminal complaint, which provided sufficient information to locate and apprehend the defendant.

Eventually, all old warrants will be entered in the system, dramatically helping to erase the backlog of unserved warrants. Additionally, by mid-2009, all new emergency protective orders and domestic violence orders will be entered into the E-Warrants system.  The system also helps avoid situations where a warrant is served on an individual multiple times, saving valuable time and resources.

“The E-Warrants system provides all Kentucky law enforcement officers with instant access to critical local warrant information, beyond what they can obtain through the National Crime Information Center,” Kentucky State Police Commissioner Rodney Brewer said.  “This greatly enhances officer safety and will result in more warrants served and more criminals off our streets.”

“We’re well on our way in resolving Kentucky’s long-term need for improving access to warrant information as well as sharing such data across agency boundaries,” Thomas L. Preston, executive director, Kentucky Office of Homeland Security (KOHS), said.  “This program will be a national model for improving response to crime as well as the threat from terrorism.”

The E-Warrants system also enables judges to receive, review and take action on warrants via handheld electronic devices such as a personal digital assistant or cell phone.

“The success of the Kentucky E-Warrants system is an example of technology at its best, playing an important role in protecting the public and delivering swift and efficient justice,” Chief Justice of Kentucky John D. Minton Jr. said. “As the E-Warrants system is implemented across the commonwealth, all judges will have the ability to electronically sign warrants and issue criminal complaints anywhere there is Internet access. This technology will allow the Court of Justice to better serve the citizens of Kentucky and save valuable time and resources.”

The system was originally funded with a $4.5 million General Fund appropriation, and implemented through KOHS. Extending the program statewide is expected to cost about $900,000, mostly for training, travel and system enhancements.  Once fully operational, the system will be owned by KSP and maintained as part of the agency’s ongoing technology maintenance contract.

The E-warrant system is the second technology-based enhancement aimed at improving public safety to take effect under Gov. Beshear.  In September 2008, Gov. Beshear announcement Public Safety First, an initiative that elevates and unifies several key public safety technology programs under a single umbrella of protection to be overseen by the Justice and Public Safety Cabinet

 

KBA limits power of Bar President

December 17th, 2008

 

The president of the Kentucky Bar Association and the group’s ethics committee have settled an investigation over her removal of committee members in a deal that will put limits on her power.

 

The association’s Board of Governors found that Barbara Bonar, of Covington, inappropriately removed several members of the ethics committee in August before their terms expired. Several have returned to the board, the association said.

 

Under terms of the deal, Bonar needs approval of the Board of Governors or the association’s executive committee for any future appointments or removal of committee members.

 

Bonar declined comment yesterday.

 

Buzz English, a Bowling Green attorney who is president-elect of the association, said the board did not reach a conclusion about why the ethics committee members were removed, only that it was done improperly.

 

“These people should not have been removed,” English said.

 

Bonar is still subject to a KBA investigation concerning actions taken in a class action case.  The action taken by the Board this week does not affect or conclude that investigation.

U.S. Rep. John Yarmuth says Obama appointments of U.S. Attorneys and U.S. Marshals may not be discussed until March

December 13th, 2008

 

Dec. 14, 2008

 

U.S. Rep. John Yarmuth (D-Louisville) said discussions with the transition team of President-elect Barack Obama regarding federal appointments within the states have been limited thus far, but they may kick up once Obama has been inaugurated.

 

“We have not had any conversations yet with the transition team about that except to be told that they are probably looking at maybe March before they start focusing on U.S. Attorneys and Marshals and so forth,” Yarmuth told PolitickerKY.com.

 

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REPORT OF THE GOV.’S CRIMINAL JUSTICE REFORM COMMITTEE

December 13th, 2008

Secretary Michael Brown has submitted the 28 page report to Gov. Steve Beshear with reccomendations for reform of the Kentucky Criminal Justice system.

This important report discusses numerous issues that should be adopted and also discusses issues which should be avoided. 

Click: CRIMINAL JUSTICE REFORM Report to the Governor – presented by: Secretary J. Michael Brown   Secretary Justice & Public Safety Cabinet