Kentucky Supreme Court Flexes Its Muscle, Rules Unanimously That Lawyers Cannot Ethically Require Their Clients To Waive Future Malpractice Claims When Advising Clients To Accept Plea Deals, Even In Federal Courts.

 
Ky. high court rejects U.S. plea bargain clause

In an unusual case pitting the power of federal government against that of the Kentucky Supreme Court, the court ruled unanimously Thursday that federal prosecutors may not force defendants in plea bargains to waive the right to sue their lawyers for ineffective counsel.

The U.S. attorneys for the western and eastern districts of Kentucky challenged a state ethics opinion adopted in 2012 that said it is unethical for defense lawyers to advise clients to accept such deals.

The Kentucky Bar Association said there is an inherent conflict of interest when a lawyer advises a client to drop a future malpractice claim. The bar also said it is unethical for prosecutors to recommend such deals.

Writing for a unanimous Supreme Court, Chief Justice John D. Minton agreed, saying that it is unethical for prosecutors, as "ministers of justice," to induce defendants to waive their right to pursue a claim of ineffective counsel or to induce a defense lawyer to violate the Rules of Professional Conduct.

Minton wrote that the case is important because, as the U.S. Supreme Court once said, "ours is for the most part a system of pleas, not a system of trials."

He said the "pervasiveness of plea bargains — horse trading between prosecutor and defense counsel — cannot be overstated."

Prosecutors say waivers of the right to sue for ineffective counsel bring finality to cases and avoid years of subsequent litigation.

U.S. Attorneys David J. Hale and Kerry Harvey noted that 10 of 12 federal circuit court of appeals have said they are legal.

They also contended that the state was violating the supremacy clause of the federal constitution by telling federal prosecutors what to do.

But the Supreme Court said that it alone has the power to regulate lawyer ethics, and that the ethics opinions governs only lawyers — defense attorneys and prosecutors — not defendants.

Minton also noted that Justice Department rules say its prosecutors must follow ethics rules in the state where they practice.

Stephanie Collins, spokeswoman for the Western District, said in a statement that "we are grateful that the Kentucky Supreme Court reviewed the ethics opinion," which she said the office is studying.

Prosecutors in the office had stopped including the waivers since the ethics opinion was adopted in November 2012.

Thomas Glover, the KBA's chief bar counsel, said he is pleased with the ruling and that Kentucky lawyers will be pleased with it as well.

Editor's comment: Just require your clients to make the choice only, as to whether or not to accept a plea deal.

Problem solved!

Kentucky State Supreme Court Justice Will T. Scott, Is Among Those Targeted By Eastern Kentucky Disabilities Lawyer Eic C. Conn's Con!

State Supreme Court justice says he didn't ask E. Ky. lawyer Eric C. Conn for campaign money

Kia Hampton, Miss Kentucky 
USA 2011, was hired by Conn 
as his public relations 
director for $70,000 a year.

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In early 2012, Kentucky Supreme Court Justice Will T. Scott repeatedly drove to the Floyd County office of disability benefits lawyer Eric C. Conn, which is a chain of interconnected trailers along U.S. 23, fronted by a one-ton, 19-foot-tall statue of Abraham Lincoln.

Scott, who represents Eastern Kentucky on the high court, was on his way to raising $332,390 for a bruising re-election battle that fall. Conn was a multi-millionaire facing at least two federal investigations and a fraud lawsuit for allegedly rigging medical records and steering hundreds of his check-seeking clients to a judge who improperly approved their claims. A U.S. Senate committee spent five hours last week criticizing Conn's law practice at a nationally televised hearing.

The men thought they could be useful to each other.

Scott put Conn on his campaign committee and talked with him and two other lawyers in Conn's firm about money that they could raise for him, according to Scott himself and one of the other lawyers, David Hicks, who later spoke with investigators for the state attorney general's office.

In an interview last week, Scott said Conn initially approached him, not vice versa.
"They kept calling me and asking me, 'Please come by, we'd love to see you, we want to support you,'" Scott said. "I cannot turn my back on the people of Kentucky when I'm running for election."
After that conversation, Conn gave Scott's campaign $1,000, the maximum allowed by state law. So did one of Conn's lawyers, John Earl Hunt.

Then Conn tried to funnel $10,000 more to the campaign through $1,000 money orders under the names of 10 of his office employees. Conn got the money from a safe-deposit box at a Prestonsburg bank where he kept about $250,000 in cash, one of his employees, who accompanied him, told investigators.

The payments were coordinated by Kia Hampton, Miss Kentucky USA 2011, Hampton told investigators. Conn had hired Hampton for $70,000 a year as his public relations director and leader of his "Conn Girls," attractive young women who starred in his television commercials and public events.
"Mr. Will T. Scott, let me first say that (it) is an honor to be able to participate in your campaign," Hampton emailed Scott on Jan. 6, 2012. "Us at the Eric C. Conn law firm are very excited. Looking forward to meeting you next week!"
"Thanks, Kia. I'm just Will T.," Scott replied. "When I get over my sickness, tell Eric and John and all I'll stop by for a chat. I'd be embarrassed to get around them with my cough now."

Hampton told investigators that Scott came to Conn's office and gave her a batch of campaign envelopes to be used for donations. (Hampton added that she didn't know who Scott was, but she was instructed to help him.) Scott confirmed last week that he dropped off his campaign envelopes. They were pre-addressed to "Scott for Supreme Court" at the same post office box he lists as his Pikeville address on the court's website.

The Kentucky Code of Judicial Conduct, approved by the Supreme Court, prohibits judges and judicial candidates from soliciting campaign funds in person. The court has argued that, more than most politicians, judges are in a unique position to pressure people who might appear before them — especially lawyers. Judges and judicial candidates must appoint committees to request money on their behalf, keeping an arm's length between them and potential donors.

But Scott said he wasn't asking anyone at the Conn law office for money — he simply wanted their help raising money, and that's an important distinction.
"I don't go up and ask people for money, and I don't take money from people," Scott said.
Scott soon returned the donations to the Conn office employees at their individual homes. He explained in his signed letters that he could not accept money orders, only personal checks, and he invited them to attend an upcoming Pikeville campaign reception that would raise $53,425 for him.

Conn tried to get some employees to write personal checks to Scott's campaign using the returned money, but instead they kept it. Conn already had fired several of the workers — his office had a high turnover rate, employees told investigators — and he didn't try to retrieve the money from them. The scheme appeared to fizzle at that point.

Last week, Scott said he returned the money orders because he was suspicious. It seemed unlikely that 10 of Conn's employees, some of whom probably did not earn large salaries, simultaneously would give him $1,000 each, the justice said. He also removed Conn from his campaign committee, he said. In March 2012, after the attorney general's investigators questioned him about the money orders, Scott returned Conn's own donation.
"Every action on my part was honorable and professional," Scott said last week. "Had he been on the up-and-up, I would have been glad to keep him on the committee."

Giving campaign money under someone else's name — a "straw donation" — is illegal in Kentucky.
Thanks to a whistle-blower in Conn's office, a woman who was supposed to be one of the straw donors, the attorney general began to investigate. Conn soon faced a Class D felony charge in Franklin Circuit Court, punishable by up to five years in prison and the automatic suspension of his law license.

Last month, Attorney General Jack Conway dropped the charge to a misdemeanor in exchange for Conn's guilty plea. Conn received a year in jail, conditionally discharged for two years. That means he did no time and kept his law license.
"Our office believes that the charge and the penalty in this case were appropriate considering the facts," Conway spokesman Daniel Kemp wrote in a prepared statement last week.
Scott was not charged because "there is no evidence Justice Scott was involved in the scheme, and once he received the attempted donation, he returned the money orders in question," Kemp wrote.

It's unclear why Conn risked so much to assist Scott. Conn refused to talk to the attorney general's investigators about the case. He referred the Lexington Herald-Leader last week to his attorney, Kent Wicker, who said, "That matter is closed as far as Mr. Conn is concerned, and we don't have any further comment on it."

Typically, Conn practices before administrative law judges at the Social Security Administration, where Scott holds no power. Scott had, at the end of 2011, written an important Supreme Court decision making it easier for black-lung cases to proceed through the workers compensation system, and Conn's firm has represented coal miners claiming damages from black lung disease. But Scott said Conn expressed no interest in that to him.

Melinda Martin, who was Conn's Social Security case supervisor, told investigators her boss was motivated by concern for his law license. The Supreme Court and its independent arm, the Kentucky Bar Association, can move to disbar attorneys for violations of ethics rules. Conn knew he faced multiple probes into the ethics of his disability benefits work.
"She said that Conn had told her they needed to be very nice to Scott because Scott could take his law license in a second," investigators wrote in their report.

Even without Conn's money, Scott managed to raise several hundred thousand dollars and soundly defeat his challenger, Kentucky Court of Appeals Judge Janet Stumbo, in the fall election.

Kentucky Justices Say: It Ought To Be Either Self-Defense Or It's Not!

Ky court reinstates reckless homicide conviction

LOUISVILLE, Ky. — Kentucky's self-defense laws and jury instructions are so confusing that innocent people are convicted and guilty people set free because the average person can't make sense of what qualifies under the law, a Kentucky Supreme Court justice wrote Thursday.

The declaration from Justice Will T. Scott, who was joined by justices Mary Noble and Bill Cunningham, came as they agreed to reinstate the reckless homicide conviction of 61-year-old Janice Hasch of Shepherdsville in the 2008 shooting death of her husband.
"I must state my belief that the jury's verdict in this case is a state testimonial to the confusion generated by our self-defense statutes and instructions," Scott wrote for the three.

The decision reverses a ruling by the Kentucky Court of Appeals vacating the conviction.
The full court agreed that the evidence supports a reckless homicide conviction in the death of Jerald "Jerry" Hasch. The Kentucky Court of Appeals concluded that there was a lack of evidence underpinning the conviction and that a judge shouldn't have given jurors the option of reckless homicide.

Instead, the appeals court ruled, jurors should have had the options of murder and an acquittal based on a claim of self-defense.

Justice Daniel Venters wrote that, even though Hasch was aware she could have fled a potentially violent situation, that didn't negate her right to stand her ground in self-defense.
Police say Janice Hasch, then 57, shot Jerry Hasch between the eyes at a distance of less than 24 inches during a domestic dispute.

Hasch found a small caliber handgun while cleaning a closet and took the weapon, still in a case, to her husband and confronted him with it. Jerald Hasch became angry and demanded the weapon, but Janice Hasch refused to hand over the gun.

After a dispute, Janice Hasch, an experienced marksman, pulled the trigger and shot her husband between the eyes at a distance of less than 24 inches. Janice Hasch initially told police she could have left the house, as she had done during previous disputes. Later, she claimed self-defense.

Venters concluded that there's no doubt Hasch intentionally shot her husband, but that jurors accepted her claim that she believed shooting Jerry Hasch was necessary to protect herself.
"Further, it had to conclude that she was mistaken in that belief, and that she was reckless in forming that mistaken belief," Venters wrote. "Nothing in her explanation of the shooting or in the circumstantial evidence surrounding it suggested that (Hasch) entertained any doubt about Jerald's intentions or otherwise pondered the possibility that she might be mistaken in her belief.".

Scott, reiterating a call he issued in an unrelated 2005 case, called on lawmakers to address the confusion caused by Kentucky's laws with new legislation that would simplify the law and return it to the absolute guarantee of self-defense outlined in the state constitution.
"I would further note that one who truly acts in self-defense, and is thereby acquitted of murder, could not be guilty of a lesser crime involving a wanton or reckless state of mind for the same act — as we do now," Scott wrote. "As a trial judge, I believed this and still do."

Kentucky Supreme Court Rules Prison Disciplinary Committee Must Demonstrate Reliability Of Informants It Relies On For Inmate Hearings.

Court: Info about informants can't be withheld

The Kentucky Supreme Court has ruled that prison officials cannot withhold all information about confidential informants used in prison discipline cases.

The justices concluded that while the full slate of legal rights don't apply to disciplinary cases, an accused inmate cannot lose privileges and good time off their sentences without knowing something about the witnesses against them.


The ruling on Thursday came in the case of 39-year-old Ontario Thomas, who was sent to segregation for 180 days and docked two years of good time for allegedly striking a fellow inmate at the Northpoint Training Center in Burgin.
The disciplinary board relied on the word of a lieutenant, who testified that two confidential informants saw Thomas strike another inmate in a dispute.

Editor's note:You can read the court's opinion here.

Kentucky Supreme Court Reverses Conviction In The Killing Of Amy Dye Of Logan County, Ruling That "Threatening [The 17 Year Ol Accused With Death Penalty] Is Objectively Coercive".

Ky. court overturns conviction in death of child

Investigators repeatedly threatened a teen suspect with the prospect of execution and being sexually assaulted in prison unless he admitted to the beating death of his 9-year-old sister, resulting in a coerced confession, the Kentucky Supreme Court ruled Thursday.
 
The unanimous high court found police went too far when they questioned Garrett Thomas Dye, then 17, about the death of his adopted sister, Amy Dye, in Todd County near the Kentucky-Tennessee state line. The justices ordered a new trial for Dye, who is serving 50 years in prison, and ordered a trial court to determine if evidence collected based on the statements should be allowed at the trial.

"Not only did the officer erroneously convey that (Dye) was death-eligible, but also that he was certain to receive a death sentence unless he confessed to his sister's murder," Justice Will T. Scott wrote. "We hold that repeatedly threatening a 17-year-old with the death penalty is objectively coercive."

The ruling places limits on what investigators may say to teenaged suspects during an interrogation and barred using such language when questioning teen suspects in the future.

Scott also concluded four officers made "inappropriate allusions" to prison violence and rape throughout the interrogation.
"Everybody's gonna forget about you until you get to Eddyville then they'll remind you of what happened. Every day they'll remind you," an officer told Dye.
"We will not feign ignorance to the fact that the officers were alluding to prison violence and/or rape and that is precisely how (Dye) understood these comments," Scott wrote.
Todd County Commonwealth's Attorney Gail Guiling did not immediately return a message seeking comment Thursday.

The girl's death drew the attention of state lawmakers. Records in the case were eventually released showing social workers either ignored or dismissed allegations of abuse and neglect against the child.
Amy Dye went missing Feb. 4, 2011, after spending the afternoon with her brother shoveling gravel. Police found the body early the next morning in a thicket about 100 yards from the Dye home. Investigators confiscated shovels, clothes, shoes and took a DNA swab from Garrett Dye.

Dye's father told officers he didn't want the teen questioned without an attorney present and he was released. Police arrested Dye the next day and charged him in the slaying.
During four hours of interrogation, police repeatedly told Dye he would be executed for killing his sister with a jack handle.
"Each death penalty reference was immediately followed by an officer asserting the only way for (Dye) to avoid execution was to confess to the murder," Scott wrote.

The officers did not tell Dye he was ineligible for execution under a U.S. Supreme Court decision barring the death penalty for anyone under 18 at the time of a crime. The officers also didn't disclose that Dye couldn't have received a death sentence because there were no aggravating factors to the slaying, which is required under Kentucky law to bring a capital case.

Also, the officers repeatedly told Dye he would be sexually assaulted and possibly beaten in prison if he went to death row at the Kentucky State Penitentiary at Eddyville. Dye at one point said he wanted to speak with a lawyer. Officers later told Dye if he chose to speak with a lawyer before talking to them, he would lose an opportunity to tell the truth.

Those threats and omissions were enough to overcome Dye's will and ability to make a rational decision about whether to talk to investigators, Scott wrote. Based on Dye's statement, officers returned to the house and seized more evidence, including shovels and other yard working equipment.
The admissibility of those materials at trial should be decided by a judge, Scott wrote.

Kentucky Supreme Court Suspends Northern Kentucky Lawyer, Eric "Bulldog" Deters, For Misconduct.

Northern Ky attorney Deters suspended for 60 days

LOUISVILLE, Ky. — The Kentucky Supreme Court has suspended northern Kentucky attorney Eric C. Deters for 60 days because of misconduct in two civil cases.

The suspension marks the second time the high court has suspended Deters. He was also sanctioned for 61 days in February 2012.
Deters' suspension stems from misstatements he made to a court during a civil case in Campbell County and other misstatements in a libel suit he filed against Kenton County Commonwealth's Attorney Rob Sanders.

Chief Justice John D. Minton wrote in Thursday's opinion that Deters' own conduct in the two cases warranted the suspension and he's not entitled to any credit for any prior suspension.
Minton also ordered Deters to pay $2,450 to cover the costs of the proceedings.

Read more here: http://www.kentucky.com/2013/05/23/2650677/northern-ky-attorney-deters-suspended.html#storylink=cpy

Former Bath County Attorney, Donald "champ" Maze, Treated Like A "Chump" By Kentucky Supreme Court And Disbarred For Vote Buying.

Former county attorney disbarred over vote buying

A former county attorney from northeast Kentucky was disbarred Thursday for paying voters to cast ballots for him in a 2006 election and then lying about it to a grand jury.
The Kentucky Supreme Court found that one-time Bath County Attorney Donald A. "Champ" Maze's conduct proved so egregious, he should be permanently banned from practicing law, even though he had no prior disciplinary record.

Chief Justice John D. Minton, writing for the court's majority, said Maze abused a position of power and trust by using his office to corrupt both the voting process and the judicial system.
"Any layperson should know better, and so much more should a lawyer with over 20 years of experience, 12 of which included prosecuting criminals as the County Attorney," Minton wrote.
The punishment goes beyond the five-year suspension recommended by the Kentucky Bar Association's Board of Governors. Justice Will T. Scott, in a rare dissent in an attorney discipline case, said the five-year ban would have been a just punishment.
Scott noted that Maze hasn't practiced law in five years and another suspension of that length would keep him out of the legal business for a decade. That's more than enough time to protect the public should Maze fail to "adequately redeem his character" before applying for readmission to the bar, Scott wrote.
"I simply do not think that the only way to provide these safeguards, at this time, is to forever strip him of his law license," he wrote.

Maze served 21 months in federal prison. He pleaded guilty on the eve of trial in 2007 to paying five voters to cast ballots for him as he sought to return to the county attorney's job in 2006. Prior to that, Maze served three terms as Bath County Attorney before losing re-election in 2002.
Since being released from prison in January 2009, Maze has worked at a job selling cars and has not sought reinstatement to practice law.

Maze admitted to paying five voters during the election, but said he did so only after other candidates continued to pay voters after he complained about it to Kentucky State Police. He later denied paying voters in front of a federal grand jury.
After being indicted, Maze pulled together lists of prospective jurors in his case, then a list of the 14 people empaneled to hear his case. The Bar Association's Governors concluded that the list was compiled with the intent of intimidating jurors or tampering with the panel. Maze later denied knowing the lists would be put to use to intimidate jurors, even though one juror's employer received a call from a friend of Maze's. Minton found Maze's denial unconvincing.

"The court is also especially troubled by the fact that Maze never fully accepts sole responsibility for his actions and never expressed legitimate remorse for his conduct," Minton wrote.
Scott, joined by Justice Michelle Keller, said others in similar situations have rehabilitated themselves, including former U.S. Rep. Caroll Hubbard, who served two years in federal prison for campaign-finance violations, but was later readmitted to practice law.
"However, it is my contention that (Maze) deserves the same chance," Scott wrote. "Hope is an eternal beacon."

In A Kentucky First, Three Women Sit On Kentucky's Supreme Court. Now We Have To Have Hope For Other Minorities!

In a first, three women are on the Kentucky Supreme Court

FRANKFORT — For the first time, three female justices sit on Kentucky's highest court.
Former Kentucky Court of Appeals Judge Michelle M. Keller of Fort Mitchell was invested Tuesday as the fifth woman ever to serve on the Kentucky Supreme Court and the third currently on the seven-member court.
During a crowded ceremony in the Supreme Court chambers, Gov. Steve Beshear called Keller "a woman for all seasons."

Beshear appointed Keller as justice of the 6th Supreme Court District to replace Wil Schroeder of Fort Mitchell, who resigned in January to deal with a brain tumor.
Chief Justice John D. Minton Jr. of Bowling Green administered the constitutional oath of office to Keller as she placed her hand on a Bible held by her father, Richard Meier of Fort Thomas.
Keller is the first alumnus of Northern Kentucky University's Salmon P. Chase College of Law to serve on the state's high court. She also maintains an active license as a registered nurse.

Keller practiced law for 17 years before her election in 2006 to the Kentucky Court of Appeals.
She has been an assistant county prosecutor and a criminal defense attorney. Her practice concentrated on family law, personal injury and medical negligence defense.
Keller also is chairwoman of the court system's Technology Governance Committee and is chairwoman emeritus of the state Personnel Board.
Keller and her husband, James Keller, a physician, have two children, Olivia and Brenna.

The other sitting Supreme Court justices are Mary C. Noble of Jessamine County, Lisabeth Hughes Abramson of Louisville, Will T. Scott of Pikeville, Daniel J. Venters of Somerset and Bill Cunningham of Kuttawa.

Kentucky Supreme Court Disbars Last Of Remaining Exceedingly Greedy And Fraudulent Fen Phen Lawyers, Stan Chelsey.

Famed lawyer Stan Chesley disbarred for fen-phen case misconduct

 
Famed Cincinnati plaintiffs lawyer Stan Chesley, who was dubbed the “master of disaster” for winning billions of dollars for victims of hotel fires, toxic spills, airplane crashes and defective products, has been disbarred by the Kentucky Supreme Court for misconduct in the state’s fen-phen case.

The high court’s decision Thursday could affect multiple cases in which the Cincinnati-based Chesley has a hand across the country.
By stripping his Kentucky license, the court in all liklihood ended his career.

Although Chesley, is also licensed in Ohio, it is virtually automatic he will be disbarred there as well; the Ohio Supreme Court’s disciplinary counsel has said no Ohio lawyer has ever been permanently disbarred in another state and not been disbarred in Ohio as well.
Forbes magazine once said that Chesley struck fear in the hearts of “even the biggest, most powerful corporate defendants.”

Chesley is the sixth lawyer to be disbarred for the role in the state’s diet drug settlement, in which Lexington attorneys William Gallion, Shirley Cunningham Jr. and Melbourne Mills Jr., were found to have defrauded their 440 clients by taking two-thirds of the $200 million diet-drug settlement for themselves and other lawyers and consultants.

Chesley claimed his only role was negotiating the settlement, for which he was paid paid a $20.5 million fee – and that he had no duty to the clients.
“I was not a lawyer for those people,” he proclaimed in a 2006 interview, after the first questions were raised about the deal.

But a hearing officer who recommended Chesley’s disbarment found that he was “fully aware” that most of the settlement didn’t make its way to the victims and should have known by “fifth-grade arithmetic” that he had been paid $7.6 million more than he was entitled to under his contract.
William Graham, a retired judge, said Chesley's "callous subordination" of his clients' interests to his own greed was "shocking and reprehensible” and covered up his colleagues' misdeeds and took $7.6million in excessive fees, which Graham said he should pay back to clients.

Graham found that Chesley was "fully aware" that the major part of the $200million settlement he helped negotiate for the 431 victims of the diet drug wasn't given to clients.
Graham found that Chesley lied to a judge, covered up his colleagues' misdeeds and took $7.6 million in excessive fees

The decision ends a career in which Chesley, the son of Ukrainian immigrants, amassed fabulous wealth as the lead lawyer in some of the world’s biggest class-action cases.
He and his wife, a federal judge, live in what The Cincinnati Enquirer has described as the most expensive home ever sold in greater Cincinnati, a 25-room, 27,000-square-foot French chateau that he bought in 2004 for $8 million. The sprawling slate-roof mansion on five acres is attached to an eight-car garage and a carriage house and surrounded by 300 acres of forest and fields.
Chesley's fleet of more than 20 cars have included Jaguars, Rolls- Royces, Ferraris, Aston Martins and Bentleys.

He raised millions of dollars for the Democratic Party and for former President Bill Clinton, who three times came to his home for fundraisers; Clinton appointed Chesley’s wife, Susan Dlott to the federal district bench in 1995.

Chesley has said that he worked for 17 years as an obscure products-liability lawyer until the May 28, 1977, fire at the Beverly Hills Supper Club in Southgate, Ky., which killed 165 people.
The nightclub's owner had only $1 million in insurance, but Chesley devised the novel strategy of suing the aluminum-wiring industry, whose product was determined to have caused the blaze, as well as more than a dozen other companies. He eventually won $49 million in verdicts and settlements.
The triumph helped catapult him to the leading ranks of disaster lawyers and into a prominent role in the litigation over the the 1980 MGM Grand hotel fire in Las Vegas, the 1985 Arrow Air crash that killed 248 Kentucky-based soldiers, and the 1988 bombing of Pan Am Flight 103 over Lockerbie, Scotland.

Gallion, Cunningham and Mills brought him into the fen-phen care to negotiate a deal with the manufacturer of fen-phen, a diet drug combination that was withdrawn from the market after it was shown to cause heart valve damage.

And Chesley boasted that he increased the original settlement offer from $20 million to the $200 million for which the case was finally settled in 2001.
Under their contingency-fee contracts, Mills, Cunningham and Gallion should have been paid about $60 million of the $200million settlement.
Instead, they took $94.6 million for themselves and others, including Chesley, and put $20 million into a foundation that Cunningham, Gallion and others paid themselves to manage.
Chesley should have collected about $14 million.

Angela Ford, a Lexington lawyer later hired by the clients, has said that Chesley was "up to his eyeballs" in the scheme.
Chesley's contract called for him to get 21 percent of the lawyers' gross fees, so his own take would have shown that the other lawyers took about $100 million, or half the settlement.
Gallion and Cunningham were convicted of fraud and sentenced to 25 and 20 years in prison, respectively, while Mills, who argued he was too drunk to have participated, was acquitted.
Chesley, who testified for the government against Gallion and Cunningham under a grant of immunity, was never charged. 
Ford won a $42 million judgment against Gallion, Cunningham and Mills but it was reversed last year by the Kentucky Court of Appeals, which said it should have been awarded without a trial. The case is now pending at the state Supreme Court.

Chesley joined five other lawyers who have been disbarred in the scandal. In additional to Gallion, Cunningham and Mills, they are David Helmers, who worked for Gallion, as well as former circuit judge Judge Joseph "Jay" Bamberger, who approved the settlement without reading it first, even though one of the beneficiaries was a close friend.

A hearing officer who had recommended Bamberger’s disbarment said he had sanctioned the “largest-scale fraud in the history of the Commonwealth of Kentucky” while the state Supreme Court said his conduct “shocked the conscience.”
Bamberger signed an order saying that payments to the 440 clients and their lawyers were fair and reasonable, even though he had never asked for, or been told, any of the settlement's details. He also personally benefited by accepting an appointment as a paid director of the nonprofit foundation into which the lawyers poured $20 million in leftover settlement money after telling clients the amount was minuscule.

In taking away Chesley’s licenses, the Supreme Court affirmed a decision of the Kentucky Bar Association’s board of governor’s last June to disbar him.
The bar accepted the recommendation of Graham, who found that Chesley led a “clandestine meeting" with Judge Joseph Bamberger in February 2002 to get the court's "stamp of approval upon this criminal enterprise" and his approval of fees totaling 49 percent of the settlement.
Graham said Chesley also responded with "misleading," "incomplete" and in some instances "outright falsehoods" when the bar association began investigating him.

"Clearly from the evidence, Chesley believed that he would be able to 'take his money and run' after the settlement and avoid any responsibility in the distribution of the settlement to the clients," Graham said.

Kentucky Supreme Court To Hear "No Win, No Pay" Criminal Fee Case; Warren County Lawyer, Nancy Oliver Roberts, Faces Numerous Ethics Violations In Fee Dispute.

Indicted in the 1997 murder of his adoptive father, Alan David Manning agreed to pay attorney Nancy Roberts with assets from the family’s 160-acre Warren County farm, which Manning was due to inherit.

But under Kentucky law, you can’t inherit property from someone you are convicted of killing. That meant Roberts could only collect her fee contingent on winning Manning’s acquittal.
And Kentucky, like every other state, bars lawyers from charging or collecting a contingent fee in criminal cases. One reason is to avoid a conflict in which the lawyer — needing an acquittal to win a fee — urges a client to reject a plea bargain that’s in his best interest.

That’s what happened in Manning’s case, according to a lawyer disciplinary hearing officer who found Roberts guilty of violating that rule and eight other ethics regulations.
In a case to be heard March 13 by the Kentucky Supreme Court, the hearing officer recommended that Roberts, 61, be suspended from practice for one year.
But the Kentucky Bar Association’s board of governors, to which Roberts appealed, unanimously found her not guilty of seven of the charges — including violating the contingent-fee rule — and recommended she be suspended 30 days.

Now, the Supreme Court will decide what, if anything, Roberts did wrong, and whether she should be punished for it. It could reinstate any of the charges or none of them. It is the first case in which the court has ever considered a violation of the contingent contract rule in criminal cases.
In Manning’s case, a prosecutor offered a lenient deal — five years for second-degree manslaughter — but Roberts didn’t advise him to take it, court records say. He was convicted and sentenced to life in prison.

A circuit judge later set aside his conviction and excoriated Roberts, saying it was “hard to imagine a more striking example of blatant conflict between personal interest and professional duty.”
Roberts, a former teacher who has practiced law for 25 years, denies she did anything wrong and is asking the court to set aside the two bar charges on which she was found guilty — representing multiple clients and refusing to surrender Manning’s file to an assistant public advocate who succeeded her.

She referred questions to her lawyer, Lee Huddleston, who said in an interview that the charges are “ludicrous.” He said if the court orders Roberts suspended for a year it would destroy her practice.

Aggressive pursuit

The case spans 14 years — starting Nov. 23, 1998, when Earl Manning was shot three times in the head and stabbed five times in the chest.
David Manning was charged with murder, after a gun matching the one used in the shootings was found at his home. He told a detective that his father had molested him and other children when he was growing up.

Roberts agreed to represent Manning for an initial payment of $2,500 — possibly including money that might come from the estate, according to her contract. Manning later agreed to pay her more from the sale of timber on his father’s land, which Roberts knew he would get only if he were acquitted.

Then-Commonwealth’s Attorney Steve Wilson — who believed David Manning and his brother had been molested as children by their father, and had unsuccessfully prosecuted Earl Manning for the alleged crimes — offered a sentence of only five years.
Manning later testified that Roberts urged him to reject it, saying, “We are going to beat it.”
Roberts denied that, although she admitted she didn’t tell him to take the deal, either, according to bar records.

With Roberts defending him, Manning was tried in October 1998, convicted and sentenced to life behind bars.

Represented by a new lawyer, he filed a motion for a new trial based on Roberts’ ineffective counsel, and in 2005, Warren Circuit Judge John Grise granted it.
Grise said in an order that Manning didn’t have a chance of winning at trial — he had confessed the crime to his common-law wife — and that Roberts should have urged him to take the plea bargain, “the only clearly reasonable course of action facing him.”
“The contingency fee agreement hindered her aggressive pursuit of her client’s best interests,” Grise said.

Manning was offered a new plea deal — this time 10 years for manslaughter — and in November 2005, he took it. He is now in prison on escape and burglary charges.

He didn’t respond to a request for comment.

Facing the bar

A bar inquiry tribunal charged Roberts with the alleged contingent fee violation as well as incompetently representing a client and stringing out the estate for eight years in hopes of collecting her fee. She also was accused of representing multiple clients with adverse interests — Manning, his brother Andy, who also was an heir, and the executor of the estate.
The hearing officer, Trial Commissioner Katherine Ford of Louisville, found Roberts guilty on all nine counts and recommended the year suspension, the minimum sanction urged by Deputy Bar Counsel Jane Herrick.

Herrick said in a brief that there is a “dearth” of law from other states on the appropriate sanction for violations of the contingency fee rule because it is so obvious that most lawyers know not to violate it. She also said there is “scant case law” on Roberts’ “bizarre course of conduct.”
Huddleston portrayed his client as “a lawyer who loves her clients and is loved by her clients.” He said she worked more than 1,000 hours for Manning, a family friend, including many nights at the jail, and never expected to be paid. And he said language in her contract about collecting from the estate was “merely an encouragement for him to pay, if able.”
“The words ‘contingency’ or ‘winning your case’ do not appear in the contract,” Huddleston said in his brief for Roberts.
Moreover, Manning decided on his own to reject the plea offer, Huddleston said.

The day after Manning’s arrest — before he consulted Roberts — Wilson visited him in jail and asked him if he’d take the five years. Manning “adamantly rejected the offer and told him unequivocally that he had not murdered Earl,” Huddleston says in the brief.
“David was simply not going to plead guilty to murdering Earl Manning, and there was nothing Ms. Roberts could have said that would have changed his decision,” Huddleston said.
Plus, if she knew Manning was going to lose at trial, Huddleston argued, it would have made no sense for her to have discouraged him from taking the plea bargain because if he was found guilty, she couldn’t have recovered from the inheritance anyway.

 Huddleston said Manning lied when he claimed Roberts didn’t discuss the ramifications of the plea because he was desperate to get out from under a life sentence. “David was/is a professional criminal,” Huddleston said.
As for representing both David and Andy Manning — and the executor — there was no conflict because of the brothers’ “genuine love for each” and their long and deep friendship with the executor, Huddleston said.

Action by board

The Board of Governors, which includes four lay members, didn’t explain its votes unanimously exonerating Roberts of most of the charges.
But finding her not guilty of representing Manning on a contingent basis, it noted that she was never paid from the estate — and the language in her contract that would have allowed that was merely advisory.
The board also mentioned that after Manning was convicted, he wrote Roberts a note that he should have “copped” to the plea but still insisted that he “didn’t kill anyone.”
“Thus even after his conviction, David professed innocence,” the board said.
In addition to the 30-day suspension, the board voted 13-4 that Roberts take a class on “Ethics and Professionalism” and pay $7,904 in costs.

Editor's note:

Kentucky Supreme Court rule

“A lawyer shall not enter into an arrangement for, charge or collect a contingent fee for representing a client in a criminal case.”

“If the heir under a will ... takes the life of the decedent by the commission of any felony, the person so convicted forfeits all interest in the property of the decedent."

Questions and answers

Q: What is a contingent fee?
A: A contingent fee is any fee payable only if there is a favorable result.

Q: Why are contingent fees prohibited in criminal cases?
A: To discourage the corruption of justice, such as paying bribes or suborning perjury in a single-minded effort to win. Also, to avoid conflicts in which lawyers might avoid plea bargains — or avoid arguing for a conviction to a lesser crime than the one charged — so they can win outright acquittal and get paid.

Q: Why are contingent fees allowed in civil cases?
A: To give people without means access to the justice system. The U.S. Supreme Court has said the state must provide legal representation in criminal cases to the indigent.

Q: Have any lawyers in Kentucky been sanctioned for charging a contingent fee in a criminal case?
A: No, but two in Indiana have, in 1983 and 1987. Both were publicly reprimanded.

Q: Are contingent fees banned in other kinds of cases?
A: Yes, in divorce cases because of concerns that an attorney might discourage a reconciliation if a fee depends upon the granting of a divorce.
Sources: University of Kentucky law professor William Fortune; William Shepherd, chairman, American Bar Association, criminal justice association; Columbia Law Review; Northwestern Journal of Criminal Law and Criminology

Kentucky Supreme Court Suspends Bowling Green Attorney, Steve Thornton, For Six Months For Unethical Conduct.

Read the court's opinion here.

BREAKING NEWS: KENTUCKY SUPREME COURT WISELY LIMITS GRANDPARENTS' VISITATION RIGHTS WHERE CHILD'S PARENTS OBJECT; OBJECTION NOW PRESUMED TO BE IN "CHILD'S BEST INTEREST" REBUTTABLE ONLY BY "CLEAR AND CONVINCING PROOF" TO THE CONTRARY.

Kentucky Supreme Court weakens grandparents' rights to see grandchildren

The Kentucky Supreme Court has made it harder for grandparents to win visitation with their grandchildren when the child’s parents object.

In a 6-1 ruling, the state’s high court ruled Thursday that parents who oppose giving a grandparent visitation must be presumed to be acting in the child’s best interests.

The court did not strike down Ken­tuc­ky’s 1984 grandparent visitation law but said a grandparent must present “clear and convincing” evidence to win the right to visit a grandchild over a parent’s objection.

“Kentucky courts cannot presume that grandparents and grandchildren will always benefit from contact with each other,” the court ruled. “If the only proof that a grandparent can present is that they spent time with the child and attended holidays and special occasions, this alone cannot overcome the presumption that the parent is acting in the child’s best interest.”

Writing for the court, Chief Justice John D. Minton Jr., said “the grandparent must show something more — that the grandparent and child shared such a close bond that to sever contact would cause distress to the child.”

Louisville family lawyers not involved in the case said the ruling will make it extremely hard for grandparents to win court-ordered visitation rights over a parent’s objection.

“That is an awful high legal standard,” said former Jefferson Family Court Judge Louis Waterman, adding that it gives “near-total authority” to parents.

The court reversed an order from Jefferson Family Court Judge Dolly Wisman Berry, giving visitation to Donna S. Blair for her grandson B.B., who is now 8, over the objection of his mother, Michelle L. Walker.

Blair said she had baby sat for the boy since he was born, took him to the zoo and the movies, gave him bubble baths and hosted his birthday parties.

But Walker said that, after the boy’s father killed himself, she feared for his safety and emotional well-being, because Donna Blair and her former husband blamed Walker for the suicide.

The court ordered Berry to conduct a new hearing, following the rules set down in its 20-page opinion.

The court said grandparents may win court-ordered visitation if they can show that the child would be harmed by denying it or where the grandparent and child lived in the same household for some time or the grandparent regularly baby sat the child.

The court directed judges to consider eight factors, including the nature and stability of the relationship between the child and the grandparent; the amount of time they had spent together; the effect that granting visitation would have on the child’s relationship with the parents; and the wishes and preferences of the child.

In a dissenting opinion, Justice Will T. Scott said he would have required grandparents to rebut the presumption in favor of parents based on a preponderance of the evidence, which is an easier burden to meet.

“It is beyond dispute that there is a societal presumption that it is usually healthier when a child has a loving relationship with a loving grandparent,” wrote Scott, who is seeking re-election against former Court of Appeals Judge Janet Stumbo.

The case marked the first time in 20 years that the state Supreme Court had tackled the issue, and the first time since the U.S. Supreme Court held in 2000 that parents have a constitutionally protected interest in raising their children without government interference.

Upholding the right of grandparents in a 1992 case from Boyle County, the state Supreme Court put parents and grandparents on equal footing in assessing the best interest of the child.

It also cited the benefit of visitation to the grandparent, who “can be invigorated by exposure to youth” and “avoid the loneliness that is so often a part of an aging parent’s life.”

But the court on Thursday said it was compelled by the U.S. Supreme Court’s decision to reverse its Boyle County ruling, which “is no longer good law.”

“So long as a parent is fit, there will normally be no reason for the state to inject itself in the private realm of the family,” the court said.

Blair’s lawyer, Denise Helline, said she found it troubling that "they set the bar too high." Walker’s lawyer, Mitchell Charney, said he hadn’t read the decision and couldn’t immediately comment.

No one tracks how many motions for grandparents’ visitation are filed in Kentucky, but Jefferson Family Court Judge Stephen George estimated in August that they are filed in about 5 percent of divorce and custody cases.

Waterman predicted that fewer will be filed now because attorneys will advise grandparents that it is less likely they will prevail.

Family lawyer Diana Skaggs, publisher of the blog “Divorce Law Journal,” who had predicted that if the court ruled Kentucky’s grandparent’s law unconstitutional it would mean “grandparents have no rights,” said she was glad the court didn’t do that.

But she agreed that the ruling means grandparents will have a tougher time getting courts to order visitation. “A loving relationship alone now is not enough.”

Editor's note:YOU CAN READ THE OPINION HERE (NOTE: REQUIRES PDF).

EDITOR'S COMMENT:I FIND IT PARTICULARLY INTERESTING THAT CHIEF JUSTICE JOHN MINTON, A DEMOCRAT, DISPLAYED REMARKABLE CONSERVATIVE PRINCIPLES HERE, WHILE JUSTICE WILL SCOTT, A REPUBLICAN, WENT THE OPPOSITE WAY DELIGHTING LIBERALS BY HIS DISSENT.

BREAKING NEWS: KENTUCKY SUPREME COURT RULES THAT STUDENTS HAVE NO STATUTORY RIGHT TO ATTEND NEIGHBORHOOD SCHOOLS.

COURT: Ky students have no statutory "right" to attend neighborhood schools

LOUISVILLE, Ky. (WDRB) -- The Kentucky Supreme Court has ruled that Kentucky public school students have no statutory right to attend a particular school.

The ruling goes on to say that, "student assignment within a school district in Kentucky is a matter that the legislature has committed to the sound discretion of the local school board."

The decision comes as a serious blow to proponents of so-called "neighborhood schools."

Ted Gordon, the attorney for the plaintiffs' in the case, released the following statement after the ruling:

"While we will always respect the decision by the majority of the justices at the Kentucky Supreme Court, we have to wonder at the obvious attempts by JCPS to influence this decision by JCPS ever-changing student assignment plans," Gordon said. "With each new plan, JCPS has inched closer to neighborhood schools, which they realize that parents want and children need to improve the horrendous education that our children are now getting."

"All the parents in this case were courageous to take on the school system, and even though they did not win this round, they have made JCPS turn the corner, away from the outdated social experiment of busing," he continued. "Now these parents are hopeful that JCPS will start improving the education outcome for all our children."

JCPS officials have maintained that letting students attend the school closest to their home would return the community to segregation.

The court heard arguments from both sides in April, but the issue really boils down to one thing -- what does the word "enroll" mean?

Byron Leet of JCPS, said nowhere does the word "enroll" also mean "attend."

"We went to three different dictionary definitions of what it means to enroll. Not a one of those definitions, whether Black's Law Dictionary, the Oxford English Dictionary or the Merriam Webster Dictionary, tells us that the words enroll and attend mean the same thing," he said.

But Gordon, argued that it's clear what the legislature intended: "The common sense meaning applicable here is that enroll, there's no 'in,' there's no 'at,' enroll in that school is the contemplation that these children go to school where they enroll."

School district supporters warned of dire consequences should they lose.

"The schools in Jefferson County will resegregate," said Louisville NAACP president Raoul Cunningham in April. "There's no doubt. if you go back to a neighborhood concept of schools, there's no question, the schools will resegregate."

EDITOR'S NOTE: Click HERE to read the ruling.

KENTUCKY SUPREME COURT UPHOLDS LAW MAKING LANDLORDS LIABLE FOR TENANTS' DOG BITES.

Ky Supreme Court rules landlords could be liable for dog bites

If their tenants’ dogs bite people, an opinion by the Kentucky Supreme Court says landlords can be liable. The Kentucky Enquirer reported the opinion won’t help a Newport family. Their child was wearing a lion costume for Halloween when he was mauled by a boxer in July 2009. The court ruled the dog was too far from the rental property for the landlord to be liable in that case. Instead, the dog’s owner was found liable. She was ordered to pay $80,000 to the family.

EDITOR'S COMMENT: THE CASE IS BRANDON BENNINGFIELD (BY AND THROUGH HIS MOTHER AND NEXT FRIEND, LAURIE ENNINGFIELD) V. HELEN ZINSMEISTER, DECEASED; AND WADE ZINSMEISTER. YOU CAN CLICK HERE TO READ THE OPINION.

In A Welcome News, Kentucky Supreme Court Limits Police Use Of "Protective Sweeps" That Do Away With Our Constitutional Right To "Be Secure In Our Homes Against Warrantless Searches And Seisures". There Is A God!

Ky. court limits 'protective sweeps' by police
By BRETT BARROUQUERE

LOUISVILLE, Ky. — Lexington police told Crystal Lynn Guzman that, unless she agreed to allow a search of her apartment, an officer would remain with her while another got a warrant.

Guzman consented to a warrantless "protective sweep" search in the early hours of Sept. 10, 2008, which turned up cocaine and drug paraphernalia and resulted in Guzman's arrest.

But the Kentucky Supreme Court ruled Thursday that the threat of getting a search warrant amounted to an impermissible ruse by officers, who had no probable cause for a warrant. The ruling and threw out Guzman's conviction as well as the evidence seized in the search.

The ruling sets new limits in Kentucky on how far police officers may go to gain access to homes and vehicles without a search warrant.

"Even when a search is authorized by consent, the scope of the search is limited by the terms of its authorization," five justices wrote in an unsigned opinion.

Justice Bill Cunningham wrote in a concurring opinion that using the threat of a search warrant without probable cause to get the document has become a dangerous and much used technique that "could be an exploding land mine."

"When you have consent to enter into one's living room, you are not invited into the kitchen, or the bedroom, or the basement," Cunningham wrote. "Here, we are talking about the suppression of drugs. When the issue appears squarely before us in full bloom, it could mean the suppression of a murder weapon. Hopefully, this writing will help us avoid that more critical situation."

When making an arrest, police have the right to search and control the immediate area around where the incident happened for their own safety. But, when making an arrest in a home, officers generally need some evidence of criminal wrongdoing in another part of the residence to continue searching. Without consent or an emergency circumstance, officers have to stop the search unless a warrant is granted.

In this case, officers went to Guzman's apartment after a neighbor complained about possible drug transactions. Officers found Guzman and a man on the floor having sex when they arrived. Once Guzman turned on a lamp, officers asked if anyone else was in the apartment, to which Guzman responded no. Officers saw a blanket covering a doorway and conducted a "protective sweep" of the apartment.

During the sweep, an officer found a spoon in the kitchen sink that had drug residue on it. That's when an officer asked for permission to search the entire apartment. Guzman refused and officers threatened to get a warrant do to so.

The justices noted that there was no evidence of criminal wrongdoing seen in the living room and were told that no one else was in the apartment. Without consent, officers should not have conducted the sweep or been in the kitchen, the justices wrote.

The justices noted that the "ancient" Fourth Amendment to the Constitution, as well as Section 10 of the Kentucky Constitution, protect citizens from warrantless search and seizures and "do not discern between rich or poor."

"This apartment, its occupants, and their unseemly activities may not have measured up to an acceptable standard of decency," the justices wrote, but that didn't give officers the right to search the home.

Cunningham noted that the method used by police "is fraught with constitutional problems."

"Misinformation or deception by a law enforcement officer for purposes of obtaining consent to search will not be upheld," Cunningham wrote.

Read more here: http://www.kentucky.com/2012/06/21/2232923/ky-court-limits-protective-sweeps.html#storylink=cpy

Editor's comment; A great win for "We, the people".

Editor's note: The case is CRYSTAL LYNN GUZMAN V. COMMONWEALTH OF KENTUCKY, 2010-SC-000415-DG (2012) and can be read here.

I Am VERY Proud Of My VERY Good Friend, Kentucky's Chief JustIce John Minton.

Minton honored at annual Law Day
By JUSTIN STORY, The Daily News

Kentucky Chief Justice John Minton’s tenure as a Warren Circuit Court judge was commemorated Wednesday with the unveiling and dedication of a portrait that will hang in the courtroom where he once presided.

The ceremony took place during the Bowling Green-Warren County Bar Association’s Law Day 2012 program at the Southern Kentucky Performing Arts Center.

Painted by Bowling Green artist Angela Kuprion, Minton’s portrait will hang in Circuit Courtroom A in the Warren County Justice Center alongside those of several other circuit judges who have served over the years in Warren County.

Minton served as a circuit judge from 1992 to 2003 before being named a Kentucky Court of Appeals judge.

In 2006, Minton was appointed by then-Kentucky Gov. Ernie Fletcher to the Kentucky Supreme Court and was sworn in as chief justice in 2008.

During a brief speech accepting his honor, Minton thanked those who enabled him to pursue his dreams and took a moment to specifically recognize community leader Cora Jane Spiller, who Minton said has worked tirelessly in making sure the city’s history is recognized and preserved.

“We would not have this portrait dedication or any portrait dedication in the last decade without Cora Jane,” Minton said.

Minton’s portrait will hang in the courtroom where Warren Circuit Judge John Grise currently serves.

“None of his predecessors I believe have exceeded his abilities and none of his successors I know have come close to approximating them,” Grise said of Minton.

The ceremony Wednesday was the high note of the 55th annual Law Day celebration by the local bar association.

This year’s event took place amid grim budgetary forecasts that have led several states to reduce funding for their judiciary systems.

Last year, 42 states cut funding for their court systems, and Kentucky court employees will be furloughed for three days this year after state lawmakers reduced the budget for its judicial branch. About 3,700 court workers across the state will be affected by the furloughs.

Florence attorney William T. Robinson III, the current president of the American Bar Association, said the American court system plays a crucial role in protecting rights and that it is essential that courts receive adequate funding to carry out their role in government.

“This is something so precious ... and we’re treating it like another line item in the budget,” Robinson said. “This is an issue for all the citizens of this country because it is your freedom that is at stake.”

The Law Day celebration honored a few local attorneys for their work in the community.

Dwight Burton of Bowling Green won the association’s Pro-Bono Publico award, given to the member of the Warren County Lawyer’s Care Program for outstanding commitment to pro-bono work in the community.

Burton has represented several clients in civil cases who could not otherwise afford an attorney. He said that getting justice on behalf of those clients was a “rewarding feeling.”

Rebecca Simpson of Kentucky Legal Aid was honored with the Gwyneth Davis Outstanding Public Service Award for her commitment to causes enhancing justice and civil rights.

Joseph Huddleston, a former Kentucky Court of Appeals judge who died last year, was recognized with the William H. Natcher Award honoring retired or deceased bar members whose life represented serving public interest over personal interest.

Huddleston’s wife, Heidi, accepted the award on his behalf.

Kentucky Supreme Court: Exigent Circumstances Did Not Exist For Police To Enter "Wrong" Apartment Without A Search Warrant.

State Supreme Court rules against Lexington police for entering home without a search warrant By Greg Kocher Urgent circumstances did not exist for Lexington police to enter an apartment without a warrant in 2005, the Kentucky Supreme Court ruled Thursday. The decision is the latest development in a case that was addressed by the U.S. Supreme Court in 2011 and sent back to Kentucky. At issue are the circumstances that must be present for the police to enter a home without a search warrant, which the Constitution normally requires.

The decision is not only a victory for Hollis Deshaun King, whose 2006 conviction on various drug charges was canceled by a previous Kentucky Supreme Court decision, it is a victory for the public against unreasonable searches and seizures, said Jamesa J. Drake, the public defender who represented King. The case dates to Oct. 13, 2005, when King was entertaining two friends at his Centre Parkway apartment. No one disputes that there was marijuana and a small amount of cocaine in the apartment. But police might never have known were it not for a nearby undercover operation in which an informant bought crack cocaine from a dealer. When the dealer entered King's apartment building, the police moved in to arrest the dealer.

Police heard a door slam in a breezeway but did not see which apartment the suspect had entered. As it turned out, their suspect had entered the door on the right. The police went to the door on the left, after smelling pot coming from that door. After they knocked and announced themselves, the officers said they heard noises they thought might indicate that evidence was being destroyed. They kicked in King's door and. finding the drugs, arrested King and his friends. King eventually pleaded guilty to drug trafficking, marijuana possession and being a persistent felony offender, but he reserved the right to appeal a circuit court's denial of his motion to suppress evidence. The Kentucky Court of Appeals affirmed the circuit court's judgment. But in 2010, the Kentucky Supreme Court threw out the evidence against King and vacated his conviction, ruling that police did not have cause to burst into his home without a warrant. The state court said police may not rely on "exigent" or urgent circumstances they themselves create to enter a home without a warrant. But in its May 2011 decision, the U.S. Supreme Court held that police may rely on urgent circumstances so long "as the police did not create" the emergency by engaging or threatening to engage in conduct that violates the Fourth Amendment protection from unreasonable search and seizure.

Because the police did not engage in such conduct, the U.S. Supreme Court reversed the Kentucky Supreme Court. But the U.S. Supreme Court held that any question about whether urgent circumstances actually existed were better addressed by the state supreme court. That issue was addressed in Thursday's seven-page opinion written by Justice Wil Schroder. Under the Fourth Amendment, police can't conduct a warrantless search in a private home without probable cause (the smell of marijuana provided the undisputed reasonable cause in this case) and urgent circumstances. Any other search is unreasonable. The state attorney general's office originally argued that the warrantless entry was justified by the "hot pursuit" of a fleeing suspect and the imminent destruction of evidence. The U.S. Supreme Court denied review on the issue of hot pursuit, so the state Supreme Court on Thursday reaffirmed its original opinion that "there was no hot pursuit justifying the warrantless entry of the back left apartment." On the issue of imminent destruction of evidence, the Kentucky Supreme Court concluded that the commonwealth "failed to meet its burden" of demonstrating urgent circumstances justifying a warrantless entry. During a Fayette Circuit Court hearing in which King sought to suppress evidence, Lexington police officer Steven Cobb repeatedly referred to the "possible" destruction of evidence. Cobb said that he heard people moving inside the apartment and that this was "the same kind of movements we've heard inside" when other suspects have destroyed evidence. Cobb never articulated the specific sounds he heard that led him to think evidence was about to be destroyed.

Thursday's opinion said the sounds "were indistinguishable from ordinary household sounds, and were consistent with the natural and reasonable result of a knock on the door. Nothing in the record suggests that the sounds officers heard were anything more than the occupants preparing to answer the door." Finally, the opinion said that urgent circumstances "do not deal with mere possibilities, and the commonwealth must show something more than a possibility that evidence is being destroyed to defeat the presumption of an unreasonable search and seizure." Chief Justice John D. Minton Jr. and Justices Mary Noble, Daniel Venters and Lisabeth Hughes Abramson concurred in the majority opinion. Justice Bill Cunningham dissented because he said the officers acted under urgent circumstances, and Justice Will T. Scott joined in that dissent. Allison Martin, communications director for the state attorney general's office, said Thursday's decision was under review there. "Our attorneys have 20 days to determine whether or not they will ask for a rehearing at the Kentucky Supreme Court," Martin said. In addition, the attorney general's office has 90 days to seek a review by the U.S. Supreme Court, Martin said.

Read more here: http://www.kentucky.com/2012/04/26/2165923/state-supreme-court-rules-against.html#storylink=omni_popular#wgt=pop#storylink=cpy

Editor's note: check out the opinion here.

Telling Us What Many Of Us Already Knew Except Most Lawmakers, Kentucky Supreme Court Affirms That The General ASSembly's Redistricting Plan Violates Section 33 Of The State Constitution; Legislators Must Run In Old (Previous) Districts.

Read the short opinion here. The court will issue comprehensive opinion later.

Click here to read Judge Shephard's opinion on appeal.

ANYONE who thought the Supreme Court will do away with Fisher 11's constitutional requirement of a population variance of -5% to 5% was sadly mistaken. The court, with this opinion, CLEARLY reaffirmed Fisher 11.

Very Important Ruling From Kentucky Supreme Court: Kentucky Ebay Purchaser Cannot Sue Out Of State Seller In Kentucky Courts.

Yes, you heard it right!

You buy something on Ebay and you don't like it? Forget suing in Kentucky.

Read the court's very thoughtful opinion in the case of Hinners V. Robey.

Practice pointer: To my fellow practitioners of the law: Please note that this case is NOT limited to Ebay sales, but extends to ALL internet commerce styled like Ebay, where the sale is offered to EVERYONE and the seller does NOT specifically target Kentucky buyers.

Kentucky Supreme Court Approves Temporary Ban On Executions.

Ky. high court upholds ban on executions
By BRETT BARROUQUERE

Kentucky's execution chamber is at the Kentucky State Penitentiary in Eddyville. LEXINGTON HERALD-LEADERBuy Photo

LOUISVILLE, Ky. — A split Kentucky Supreme Court has upheld a judge's order halting all executions in the state.

The court, by a 5-2 vote on Thursday, left in place the lower court's order temporarily barring executions while an appeal by condemned inmate Gregory L. Wilson is pending.

The decision means that Kentucky won't be able to carry out an execution, despite having recently purchased enough of a key drug to carry out three lethal injections.

Franklin Circuit Judge Phillip Shepherd issued the order in September as the state prepared to execute 54-year-old Wilson for the 1987 kidnapping, rape and murder of 36-year-old Debbie Pooley in northern Kentucky. Shepherd told attorneys on Monday that he's considering a final opinion in the case.

Read more: http://www.kentucky.com/2011/03/24/1682986/ky-high-court-upholds-ban-on-executions.html#ixzz1HX7o9HsV