Kentucky Law Review

CHASE LAW: "Chase Center for Excellence in Advocacy and Chase Student Advocacy Society Host Guest Speakers"

From Chase School of Law:

On 9/23/2008, the NKU Chase Center for Excellence in Advocacy and the NKU Chase Student Advocacy Society hosted a practical skills discussion with Rob Sanders, Commonwealth's Attorney, and John Delaney, Public Advocate, on prosecuting and defending cases in Kentucky.

Over 40 law students attended the session. The discussion was very informative, educational, and well-received.

Next semester, the Externship Program will have a specialized externship clinic for students prosecuting and defending criminal cases in Kentucky.

TRIAL TIPS: Thinking outside the box can enhance jury trials

Study shows that "thinking outside the box" or at least the jury box is beneficial to a juror's understanding of a trial:

Alternative Concepts Enhance Jury Trials, Study Finds

The use of alternative trial concepts generally enhanced the jury trial process, according to a study released Thursday by the 7th Circuit Bar Association American Jury Project Commission. Survey results from 434 jurors, 86 lawyers and 22 federal trial judges found that concepts such as allowing jurors to ask questions of witnesses during trials and limiting presentations by lawyers enhanced juror understanding and trial satisfaction.  Lynne Marek, Law.com  09/29/2008
Read Article: Law.com   

Click HERE for A 7th Circuit Bar Association study that tested alternative trial concepts (pdf).

MEDICAL: Federal study finds that 90 percent of nursing homes violated federal health and safety standards during the last year

I have been told that John F. Kennedy in a message to Congress said that "On the basis of
his study of the world's great civilizations, the historian Toynbee concluded that a society's quality and durability can best be measured 'by the respect and care given its elderly citizens.'"

With that thought in mind, the following story has disturbing implications for all of us. 

Report: Vast Majority of Nursing Homes Violated Safety Standards

A government report has found that more than 90 percent of nursing homes violated federal health and safety standards during the last year. According to the Department of Health and Human Services report, about 17 percent of homes were cited for failures that resulted in harm or injury to patients. The report also noted that for-profit nursing homes were more likely to have deficient care problems than their non-profit counterpart

For New York Times story, click here.

Nursing Home Report (PDF via Dept. of Health and Human Services)

JUDICIAL ELECTIONS: Marcus Carey Prevails; Judge Caldwell Shoots Down Kentucky's prohibitions against judicial candidates soliciting funds and identifying party affiliation in campaign

Judge Karen Caldwell ruled this Monday that the Kentucky Judicial Conduct Commission's rules prohibiting judicial candidates from identifying themselves by political party affiliations and soliciting campaign funds were unconstitutional.  2006 Supreme Court candidate Marcus Carey had filed the suit against the commission and prevailed; a permanent injunction was issued by Judge Caldwell.

Here is a link to the opinion and order and to the judgement filed in district court.

Here is the story at www.lex18.com news in Lexington.

Judge Overturns Some Rules Of Ky. Judge Campaigns

Posted: Oct 27, 2008 06:51 PM

Updated: Oct 27, 2008 06:51 PM

LOUISVILLE, Ky. (AP) - Judicial candidates in Kentucky may now identify themselves by party and can raise campaign cash after a federal judge threw out some of the regulations restricting such activities.

U.S. District Judge Karen Caldwell in Frankfort ruled Monday that the Kentucky Judicial Conduct Commission's rule against judicial candidates identifying themselves by party is unconstitutional.

Caldwell also found unconstitutional the bar association's rule against judges and judicial candidates soliciting campaign funds.

Caldwell permanently barred the Judicial Conduct Commission from enforcing those parts of the rules. But, Caldwell noted, the rest of the regulations regarding the conduct of judges and judicial candidates may continue to be enforced.

The ruling came in a case brought by Marcus Carey, who ran an unsuccessful race for the state Supreme Court in 2006.

Carey argued that rules barring him from declaring his views on such legal issues as abortion and gay marriage infringe on his free-speech rights.

Carey challenged a rule that says judicial candidates must not "intentionally or recklessly" make a statement that could be perceived "by a reasonable person" as committing them to rule a certain way on an issue they could hear.

The new rule was drafted after a judge struck down a previous regulation that prevented judicial candidates from making statements that "commit or appear to commit" to positions on cases they likely would hear.

Carey, a former Kentucky Republican Party official, lost the 2006 race to Justice Wil Schroeder. Carey's attorney, Jim Bopp of Terre Haute, Ind., said the ruling will give voters more information about who is running for judge and allow candidates to be more open on the campaign trail.

"It will significantly affect their ability to connect with voters about their general judicial philosophy," Bopp said.

Gregg Hovious, an attorney for the Judicial Conduct Commission, did not immediately return a message seeking comment on Monday. A spokeswoman for the Kentucky Bar Association also did not immediately return a message seeking comment.

Caldwell also struck down the rules on fund-raising.Under the Judicial Conduct Commission's ethics rules, judges were forbidden from soliciting campaign contributions to prevent corruption or the appearance of corruption. But judges were allowed to use surrogates to collect campaign cash.

"However, requiring that the judge's agent make the solicitation rather than the judge himself does not appreciably lessen the damaged caused by such solicitations to the state's interest in an impartial and open-minded judiciary or the appearance of the same," Caldwell wrote.

Caldwell also found little basis for restricting judges and judicial candidates from aligning with a particular political party.

The Judicial Conduct Commission and the Kentucky Bar Association argued against lifting restrictions on partisan alignments for judges, saying people may vote a straight party ticket without considering the candidate's qualifications.

Caldwell said since the U.S. Supreme Court struck down Minnesota's restrictive rules on judicial campaigns in 2005, judges have been able to tell voters where they stand on issues.

"Thus, if candidates are permitted to identify their party, that will not be the only information voters have to guide their choices," Caldwell wrote.

CHASE LAW: "NKU Chase Federalist Society Hosts Honorable Judge Amul Thapar"

From Chase School of Law:

The Federalist Society hosted a presentation and luncheon with the Honorable Judge Amul R. Thapar on Thursday, September 25, 2008. Judge Thapar addressed students and faculty on the topic, "Judicial Interpretation and the Role of a Judge."

Judge Thapar is the newest member of the U.S. District Court, Eastern District of Kentucky, confirmed in December 2007. Mr. Thapar is the first Indian-American on the federal bench. Prior to his appointment, Judge Thapar served as a U.S. Attorney in the Eastern District of Kentucky.

 

HISTORY: A Kentucky Connection with Henry Clay Is Noted in One of the Treason Trials of Aaron Burr in the book "Why Burr's Treason Trial is Relevant Today"

Here is a historical moment showing a Kentucky connection in one of the Aaron Burr treason trials.  The blog post is a book review found at George Mason University's History News Network.  Burr was stopped in Kentucky and a young Henry Clay was able to convince the grand jury there was no grounds for the indictment of treason. Click on the post for information to order the book.

Why Burr's Treason Trial Is Relevant Today
By Peter Charles Hoffer

Mr. Hoffer is Distinguished Research Professor, Department of History, University of Georgia. He is the author of The Treason Trials of Aaron Burr (paperback, 2008).

In the next year, the public opinion will have occasion to revisit President George W. Bush’s attempts to ferret out and punish suspected terrorists. The president made it clear, before any trials at law occurred, that he thought the detainees were guilty. Some of the initiatives taken by his appointees, for example Department of Justice in-house rulings on the use of torture, have already been exposed to the public criticism. The prison camp at Guantanamo may or may not be disbanded, depending on who wins the presidential election this November. While much of the present controversy stems from 9/11, the basic questions of the relationship between the presidency and the High Court, and presidential pre-judgment of suspected threats to national security, has a precedent in the first years of our Republic. Before and during the treason trials of Aaron Burr, President Thomas Jefferson adopted a stance strikingly similar to that of President Bush.

* * *

Burr was nowhere near New Orleans, nor did he have an army at hand. Instead, he was defending himself in a Kentucky federal court against the charge of treason. Young Henry Clay spoke for Burr, and convinced a grand jury that there was no grounds for an indictment. Burr then gathered up a small band of friends and on a handful of flatboats began to travel to lands on the Arkansas side of the Mississippi that he had bought for development. But Jefferson’s land was long and those who would help him eager to catch and detain Burr. When he arrived near Natchez, he once again had to defend himself against a charge of treason. Again a grand jury refused to find a true bill.

CHASE LAW: "Northern Kentucky Law Review Co-Sponsors Symposium: "Lincoln, the Lawyer""

From  Chase Law School:

Oct 06, 2008 - The Northern Kentucky Law Review of the Chase College of Law and the Kentucky Historical Society co-sponsored a free public symposium titled "Lincoln, the Lawyer," on Saturday, Oct. 4, at the Marriott RiverCenter in Covington, Kentucky.

Thee symposium looked at the life and career of Abraham Lincoln.

Featured speakers were Chase Professor Roger Billings, Jr.; Christopher Schnell, assistant editor of The Papers of Abraham Lincoln; Dr. Mark Steiner,professor of law at South Texas College of Law and author of "An Honest Calling: The Law Practice of Abraham Lincoln"; and Frank Williams, chief justice of the Supreme Court of Rhode Island and one of the nation's most renowned experts on Lincoln.

Over 100 lawyers from Ohio, Kentucky and Indiana attended the event, in addition to a number of NKU Chase students and faculty.

CRIMINAL CASES: Fayette "Jury acquits man charged in truck-wash slaying"

From Kentucky.com:

Jury acquits man charged in truck-wash slaying

After deliberating for 14 1/2 hours over two days, a Fayette County jury found Marc Buchanan not guilty on all counts in a 2003 slaying at a Lexington truck stop.

Buchanan, 25, who was charged with murder and robbery in the slaying of Carl Gene McClung in August 2003, was to be released from the Fayette County Detention Center Tuesday afternoon. The verdict was reached about 1:45 p.m.

"I think the jury did what a jury is supposed to do," defense lawyer Scott Drabenstadt said. "They held the Commonwealth to their burden. There just wasn't sufficient evidence here."

COURTHOUSES: Herald Leader story follows up on its investigation into Kentucky Courthouse construction with story on failure of Harrison County project to accommodate disabled

Herald Leader highlights problems with disability access to courthouse.  We added a picture of the new judicial center to the immediate left showing the wheelchair ramp on the right.  The picture was found at the AOC web site.

Access to Harrison courthouse limited
DISABLED PEOPLE MUST HAVE GUARD'S ASSISTANCE TO ENTER
By John Cheves
jcheves@herald-leader.com

081026Courthouse
Law&MortarLogoNew

CYNTHIANA — Sandy Sageser moved into her new home a year ago, but she didn't update the address on her driver's license because she couldn't get to the circuit court clerk's office in the Harrison County Justice Center.

Severe back and kidney problems force Sageser to use a wheelchair or walker to get around.

Unfortunately for her, the $6 million Justice Center, which opened in 2002 as part of Kentucky's ambitious courts expansion, has just one public door. There are 11 steps in front of it and no wheelchair ramp.

Instead of a ramp, the Kentucky Administrative Office of the Courts installed a mechanical wheelchair lift. But the lift frequently is broken. When it does work, it's operated by a guard who must be summoned by a buzzer.

Sometimes there is only one guard on duty at the entrance. If so, he either needs to call for another guard to come and help the disabled person, or he has to lock down the entrance while he operates the lift.

As the minutes pass, Sageser said, disabled people are expected to wait patiently outside on the sidewalk, exposed to the weather.

"How are they getting away with this? Isn't there a law?" Sageser asked. "Prisoners get treated better at this courthouse than we do. At least the prisoners can get in."

There is a law — the Americans with Disabilities Act, or ADA — that says disabled people should be able to enter public facilities under their own power.

But as Harrison County shows, the law is not always followed in Kentucky courthouses, even as the AOC has allocated $880 million to build 65 justice centers around the state.

Nobody seems to know how widespread accessibility problems are.

AOC spokeswoman Jamie Ball said the courts agency can only document and address accessibility problems that citizens bring to its attention. This year, that has included complaints about inoperable automatic doors in the Jefferson and Lee county courthouses, Ball said.

The AOC did not know about the Harrison County Justice Center until the Herald-Leader inquired about it, she said.

"Once we learned there was a problem, our ADA coordinator made a site visit and asked the state ADA coordinator to have a facilities specialist look at the lift and provide feedback," Ball wrote in a statement. "Once the AOC receives that feedback, we will address issues with the lift to ensure that it operates properly and consistently within ADA requirements."

A lawmaker who oversees state construction projects, including the justice centers, said there's no excuse for a new building that is not wheelchair accessible.

"I had never heard of this, and I think it's a huge problem," said state Sen. Tom Buford, R-Nicholasville, a member of the legislature's Capital Projects and Bond Oversight Committee.

"We are spending so much on these justice centers, they had better have all the bells and whistles, they had better be fully in compliance with all the laws," Buford said.

CRIMINAL CASES: Jefferson Circuit Judge McKay Chauvin set Dec. 4 for the sentencing of Jared Steen, 20, who has been released on bond.

From community notes in the Courier Journal:

 
A jury yesterday recommended a five-year prison sentence for a Louisville man convicted in a fatal wreck on Crittenden Drive last year.

Jefferson Circuit Judge McKay Chauvin set Dec. 4 for the sentencing of Jared Steen, 20, who has been released on bond.

On Wednesday the jury found Steen guilty of second-degree manslaughter and operating a vehicle under the influence of intoxicants in the May 4, 2007, crash that resulted in the death of Robert Lyle, a passenger in the car.

The two men were northbound in the 5000 block of Crittenden near Louisville International Airport when Steen lost control in a sharp curve and the car hit a curb, sending it airborne, according to a police report.