Kentucky Court Report Unofficial blog of Kentucky Court of Appeals and Supreme Court decisions, minutes, argument calendars and news - maintained as a public service by Louisville injury attorney Michael Stevens with law firm of Isaacs and Isaacs
Judge Tapp, who serves as Drug Court judge for Lincoln, Pulaski and Rockcastle counties, received the All Rise award from the National Association of Drug Court Professionals during a star-studded conference in Washington.
Here are some thought-provoking posts from the Indiana Law Blog regarding the ethical propriety of judges "friending" lawyers who appear before them on Facebook. The ethics of judicial propriety, appearance, and posting come into play with free speech, campaigning, politicing, and pandering to the voters.
I for one like judges to be judges. They can read from afar, but commentary about the proceedings in their court, complimenting litigators, etc. is just a little over the top. As a pat on the back is given to some, then what about the kick in the pants to those who get the silent treatment. Negative pregnant at work.
FRANKFORT, Ky. -- The Judicial Nominating Commission, led by Chief Justice of Kentucky John D. Minton Jr., announced Aug. 10 the nominees to fill the vacant Circuit Court judgeship in the 34th Judicial Circuit, Division 2, consisting of McCreary and Whitley counties.
The three attorneys named as nominees to fill the vacancy are Thor H. Bahrman, Maxie E. Higgason and Paul K. Winchester.
Thor H. Bahrman and Maxie E. Higgason are attorneys in private practice in Corbin. Paul K. Winchester serves as the Whitley County attorney.
The judicial vacancy was created by the passing of Judge Paul E. Braden on June 3, 2011.
The public and the media are invited to the Louisville Bar Center this Thursday, April 14, 2011 @ 11 am for the announced results of this year's judicial evaluations.
Here are the where, when, who, whats and why of the story.
WHAT: Louisville Bar Association to announce results of judicial evaluation
WHEN: Thursday, April 14, 11 a.m.
WHERE: Louisville Bar Center, 600 W. Main St., Suite 110
WHO: Pete Karem, Chair, Louisville Bar Association Judicial Evaluation Committee; Jim Lunger, Vice President, Thoroughbred Research Group; D. Scott Furkin, Executive Director, Louisville Bar Association
*Various Judicial Evaluation Committee members will be present for interviews
WHY: Members of the judiciary have the daunting task of deciding the fates of many in our community every day. As such, these judges must also balance other responsibilities within their respective court rooms while maintaining a high level of professionalism and legal ability. The judicial evaluation, conducted annually since 1979, assesses the performance of sitting judges and magistrates serving Jefferson County state courts and Federal courts for the Western District of Kentucky. The evaluation is designed for the purpose of achieving excellence in the performance of individual judges and the improvement of the judiciary as a whole while improving public confidence in the state’s courts.
Media are encouraged to stay on for live shots and interviews through 1 p.m.
DIRECTIONS: Enter the Louisville Bar Center through the 6th Street entrance. Follow Main Street West bound turning left onto 6th Street – building located on corner. Parking is available on-street (metered) or off-street in the Republic Bank parking garage adjacent to the Louisville Bar Center.
And the third recent negative news story about local judge's actions involves Jefferson Circuit Court Judge Audra Eckerle's conduct during a criminal trial. The other recent stories involved federal disrict court Judge Charles Simpson and Jefferson Circuit Court Judge Judith McDonald-Burkman.
Note. All three stories are an outgrowth of criminal trials.
Here is the story written by Jason Riley with the Courier-Journal. The allegations against the judge originally were an outgrowth of media remarks made by Clay conerning Judge Eckerle's bias in a criminal trial. The recent allegations involve statements attributed to Judge Eckerle that a bar complaint should be made. Attorney Clay sought the judge's recusal accusing her of conspiring to have her her election supporters file bar complaints against him. In his allegations, Clay also claims Chief Judge Willett apprised Clay of Judge Eckerle's statements that a bar complaint should be filed against Clay for disparaging remarks he made about Eckerle.
Free speech issues arise on both sides of this controversy, and although the bar has regulatory control over its members and the judges (who are also lawyers). These individuals are also citizens of the Commonwealth and the United States with rights as any other citizen to express an opinion, but there is also the criminal defendant's right to a fair trial which includes a fair judge. Thus, procedures for insuring the criminal defendant's right to scope out any judicial bias should be established which not only minimize but guarantee no negative repercussions to the lawyers and the defendant. Such should also apply with equal force to civil trials (even though the direct constitutional prescription is as explicity as in criminal cases), and the Seventh Amendment's guarantee to a right of a civil jury trial has not been held applicable to the states.
In any event, Clay wished to voir dire (question) the judge regarding her discussions with the Chief Judge. If anyone has any comments on the procedure, please make them below. Some might be interested in the recommended procedures to follow when an attorney wishes to make sure the judge is fair and questions motives for the judge's actions. Keep in mind the risk of challenging judicial autority and how it might affect further actions. Hopefully, this is only a theoretical risk.
The attorney for a St. Matthews shop owner sentenced to 12 years in prison for burning down her business asked Jefferson Circuit Court Judge Audra Eckerle on Monday to recuse herself from the case and accused Eckerle of conspiring to have supporters file bar complaints against him for comments he made to the media.
Thomas Clay, who represents Susan Kay Lukjan, told Eckerle that he was contacted by Chief Jefferson Circuit Judge Barry Willett after Lukjan was convicted in July, with Willett telling him Eckerle had said a bar complaint should be filed against Clay for disparaging remarks he made about Eckerle.
In August, Clay said, two financial supporters of Eckerle filed complaints with the Kentucky Bar Association, alleging that Clay had been unethical in making false statement about Eckerle to the media, including The Courier-Journal.
On Monday, Clay asked Eckerle if he could question her about her discussions with Willett and what, if any, contact she had with the two people who filed complaints against him.
Eckerle called Clay’s motion “very creative” but not relevant to the hearing Monday, which was supposed to be about whether Lukjan could be awarded a bond pending her appeal of her conviction for second-degree arson, burning personal property to defraud an insurer and fraudulent insurance acts over $300 in the destruction of her business, Campbell's Gourmet Cottage.
“If people are filing complaints against you for behavior that they allege is unethical, that has nothing to do with the court and its determinations about issues connected with the trial,” Eckerle told Clay.
Clay has repeatedly criticized Eckerle's handling of the case, saying in July that the judge had shown a consistent bias against Lukjan, didn't properly follow the law and denied Lukjan a fair trial.
He said Eckerle ruled inconsistently on objections, giving favorable treatment to prosecutors; didn't properly review the qualifications of prosecution witnesses; failed to ensure the commonwealth turned over exculpatory evidence; and didn't allow a key defense expert to testify because he wasn't properly licensed, which Clay claimed was an error.
FOR REST OF THE NEWS STORY, CLICK ON HEADING ABOVE.
Here is another recent news story in which there is some unfavorable press regarding local judges. This time it is a federal judge, Judge Charles Simpson, and involves post-trial claims from the U.S. v. Karen Sypher case and recusals. Again, not commenting on the merits of the issue, but the pot continues to get stirred.
LOUISVILE, Ky. (WHAS11) -- A federal judge ruled late Wednesday that Sypher will be sentenced next month. That sentencing has been delayed since October. Judge Charles Simpson also ruled that he will not disqualify himself from the case. In August, Karen Sypher was found guilty of trying to extort millions of dollars from University of Louisville basketball Coach Rick Pitino. Sypher was convicted of three counts of extortion, two counts of lying to the FBI and a count of retaliation against a witness. After that, she fired her trial attorney and asked that Judge Simpson be taken off the case, citing conflicts of interest. She then hired a new team of out-of-town lawyers who are working for free. The judge has set her new sentencing date for Tuesday, January 18, the day after the Martin Luther King, Jr. holiday.
Unfavorable news stories about local Louisville judges have hit the news these past few days.
Judges, presumably, are not be part of the "story" since all they should be doing is applying the law and allowing equal justice for all.
However, some lawyers and litigants have raised questions about the propriety of judges during their trials and the fair administration of justice. What might concern the public is that it looks like the apparatus and procedure for taking a judge to task for basically who they are rather than what they are doing may not be adequate since the issues do not surface until after the fact. What does a citizen should they think the judge is favoring a litigant or a cause or a position based upon personal predilections, bias, or even dislike?
The unintended consequences is that the price to be paid is by those who are looking up to the robes - parties, litigants, lawyers. Worse yet, the system pays a toll for the accusations and innuendo - which means we all pay.
But alas, the hue and cry is raised today with inertia not far behind with memories fading until the next 15 minutes of news hits our moral and social conscience.
Here is the first story. Others will follow later.
Judge Judith McDonald-Burkman - Comments from the bench during sentencing.
The tirade delivered by Jefferson Circuit Judge Judith McDonald-Burkman on Friday as she sentenced Cecil New II to life in prison for murder was an outrageous violation of any reasonable standard for judicial conduct.
The judge declared that by sentencing New to life in prison without the possibility of parole for sexually abusing and murdering a 4-year-old boy in 2007, the convicted killer will be surrounded by “bigger, meaner men who have nothing to lose.”
“He will fear for his life every day. He will wish this court had put him on death row,” she said. Death row inmates are kept in isolation, even to the extent of having meals alone in their cells. By putting New in the general prison population, she implies that he will be routinely in danger of abuse, rape or even death.
In a 10-minute harangue, Judge McDonald-Burkman not only invoked the specter of prison “justice,” but also that of divine retribution, saying she hoped “this sentence pales in comparison to what you will receive ultimately from up above.”
State Corrections Commissioner LaDonna Thompson essentially — and properly — rebuked the judge by quickly issuing a statement that her department “in no way condones any kind of intimate retaliation or vigilante justice.” New will be assessed by authorities to determine whether he would, among other things, be in danger if assigned to a maximum security prison.
New committed a heinous crime of unspeakable cruelty. Clearly, he deserves a severe penalty, which life in prison with no hope of release certainly represents. There is no basis for any court to show him mercy. However, the purpose of the courts is to administer justice, not to invite prison inmates to carry out acts that, among other things, are illegal.
It seems likely that in crafting her statement, Judge McDonald-Burkman was trying to protect her backside from attacks in a future election campaign that she was soft on crime. But she went far overboard. A judge's role is never to condone prison violence, which is a serious national problem. To the contrary, a judge must uphold the rule of law and support prison procedures, which include protection of targets of inmate violence.
The rules for Kentucky's Judicial Conduct Commission require that someone file a grievance to complain about judges' actions. The results, if a judge is found to have acted inappropriately, can range from a private reprimand to removal from office.
In this case, an inquiry by the commission is clearly warranted. Judge McDonald-Burkman's behavior in court last week demonstrated a temperament that is unsuited for a judge, and an attitude about the law that flouts the very justice system she is sworn to protect.
For the story (as opposed to the above editorial) with a film clip:
Dec 17, 2010 | By Jason Riley firstname.lastname@example.org The Courier-Journal ... have nothing to lose." "He will fear for his life every day," Judge Judith McDonald-Burkman told the family of 4-year-old Ivan Aguilar-Cano, who disappeared while playing
UPDATE. I just noted in the Nov. 19, 2010 minutes from the Court of Appeals the following which presumably relates to the following story. If confirmed or worthy of remarks, please feel free to add your two cents worth:
ORDER DENYING MOTION FOR DISCRETIONARY REVIEW: AMELIA FRANKLIN ADAMS, ET AL. 2010-CA-001832-DR JEFFERSON VS. ANNETTE KAREM ENTERED 11/10/2010
AUG. 26, 2010 POST.
After you read the following story, followed by the CJ editorial, you got to wonder how this spiraled out of control. Neither lawyer, no judge willing to bend. I actually liked the CJ editorial. Yes, I know,,, it's shocking!
The Jefferson County courtroom conflict that led to a veteran attorney's six-month sentence for contempt stems from a clash of several vitally important priorities. However this case is ultimately resolved, all parties should seek a resolution that upholds programs that protect children and affirms the integrity of the judicial system.
In the matter at hand, attorney Amelia “Mikki” Adams sought a judge's “bypass” approval to allow a minor to have an abortion without her parents' consent. Jefferson District Judge Annette Karem ruled in favor of Ms. Adams' client, but as the proceeding ended she asked Ms. Adams for the full name of the girl, who had been identified only as “J.J.” The judge said that she needed the name in order to comply with state law that requires reporting suspected child abuse or neglect.
Ms. Adams — who first said she didn't know the name, then corrected herself and apologized — refused, saying that her client did not want her name disclosed and that she was ethically obliged to protect that attorney-client communication. Jefferson Circuit Judge Charles Cunningham Jr. subsequently upheld a contempt sentence for misleading the court, but he sent the citation for refusing to identify the girl back for further review.
First, it is a given that no attorney should ever mislead a judge. The courts can determine whether Ms. Adams actually intended to do that — and whether she defied a lawful order — but it must be understood that officers of the court are to tell the truth.
Second, the “bypass” law is a critically important provision in states, such as Kentucky, that require minors seeking an abortion to obtain their parents' consent. The U.S. Supreme Court has ruled that girls must be given an alternative to anonymously seek a judge's approval. If these girls aren't assured their names will be kept secret, the law will be weakened severely and there will be greater risk that minors will attempt to end their own pregnancies through dangerous means.
Finally, child abuse is tragically prevalent. The principle underlying the state legal requirement that all abuse suspicions be reported for investigation is a solid one.
It is unfortunate that this case could not have been dealt with in a less confrontational and less threatening manner aimed at seeking compromise. Perhaps the discussions between Judge Karem and Ms. Adams could have been conducted in chambers rather than in a courtroom. Perhaps Judge Karem could have held off her ruling — and sentences — until higher courts could rule (expeditiously) on the merits of Ms. Adams' argument. Perhaps an investigator could have determined J.J.'s identity, and gotten information about the family situation, without Ms. Adams' assistance. And, finally, perhaps Ms. Adams could have been persuaded to promise to provide J.J.'s name if she lost her appeal.
There is a lot at stake in this case for children in daunting circumstances. Their interests must come first.
In Jefferson County there were two incredibly close judicial elections decided by just a few hundred votes! Out of over 185,000 plus votes cast. My oh my!!!
Anyone besides me wondering if there will be a re-canvas or a re-count?
Think about it - two judicial races decided by the choices made by just 250 to 300 voters out of 180,000+????? A check mark the other way, and a different result could have taken place.
I say yes! The voters deserve it, the candidates who campaigned hard deserve it, and the system needs it.
It's still politics and if they really wanted it, then do it! Anyone saying this is just not the way it is done, needs to reconsider that four people put in a year's worth of campaigning, sacrificing, and laboring for a position they believed in. When a few hundred votes tips the scales at the end, then we all deserve to be sure about those results. Absolutely sure.
Decisions must be made next week, and soon.
The races for those interested are as follows (with tallies from Jefferson County Clerk's Office):
CIRCUIT JUDGE 11
Number of Precincts
John J. VANDERTOLL
Brian C. EDWARDS
DISTRICT JUDGE 17
Number of Precincts
Erica Lee WILLIAMS
A. Christine WARD
For those interested in the money raised up through 10/18/2010 for the primary and the general elections for these four candidates:
John J. Vandertoll $339,496.96 Brian C. Edwards $119,918.93
Erica Lee Williams $94,030.56 A.Christine Ward $85,010.55
Of course, this does no reflect the moneys raised and disbured in the weeks before the general election.
Now, that's a lot of money raised for positions that pay $120,000 or so per year.
I do not agree with their failure to endorse Judge Claude Prather. Their reasoning and analysis are not only weak but suspect.
I agree with the CJ's following endorsements.
Olu Stevens - Div. 6, Jefferson Circuit Court
Brian Edwards - Division 11, Jefferson Circuit Court
Jennifer Bryant Wilcox - Div. 7, Jefferson District Court
Sheila Collins - Div. 10, Jefferson District Court
However, the Curious Journal did miss the mark in endorsing Sandra McLaughlin over incumbent Judge Claude Prather who has now served 8 years on the bench and already has the endorsement of Citizens for Better Judges and very favorable marks from lawyers in the Louisville Bar Associations Judicial poll.
Judge Claude Prather has my vote. He is currently sitting on the bench, having been elected back in 2002, and now having served the public well for these past 8 years. The Courier's notes that Ms. McLaughlin has studied political science, clerked for a Supreme Court justice, and served as a county attorney (per CJ), guardian ad litem attorney and volunteer with the Legal Aid Society. When stacked up to a sitting judge doing a darn good job, these attributes are not enough. No disrespect intended to Ms. Sandra L. McLaughlin who is challenging him for this race, but Judge Prather is just doing too good a job.
You don't have to take my word for it. Judge Prather has been endorsed by Citizens for Better Judges - this endorsement is highly valued and respected among lawyers and those involved in the legal profession.
Don't take the "blue ribbon" committee's word for it. The 2009 Louisville Bar Association Judicial Evaluation Poll offers further insight. A poll by lawyers who practice in Jefferson District Court thought Judge Prather was doing a great job as he received a 95% approval rating and was one of two highest rated district court judge in 2009 bar poll. What is the bar poll? Those lawyers who practice in district court and who know the good judges, the hard working judges. And those in the know, place their faith and trust in Judge Prather to hear their cases and do justice. Now that's a pretty good endorsement too.
Please note that the other four candidates endorsed in this round also had Citizens for Better Judges endorsements. Why not Judge Prather? I guess it boiled down to a perception by the Curious Journal's editors that the challenger had "fresh ideas and energy". Little do they know this judge!
I cannot disagree with the CJ any more on this one. Judge Prather has years of experience, hard work, family, friends, integrity, and competence plus a tireless energy when he was campaigning that put me to shame. All these qualities mean more than a "fresh idea" or two. District Court requires judges who work hard, day in day out, day after day, week after week.
What is even more perplexing is how the Courier-Journal overlooked the 2004 story in their own paper by Jason Riley in which Sandra McLeod (now McLaughlin) was fired by Commonwealth Attorney David Stengle "amid allegations she grabbed and berated a juror who helped acquit a man accused of rape." See, "Juror Incident leads to firing, Prosecutor says she didn't grab, berate woman". Also, quoted in the Courier's January 14, 2004 story was Jefferson Circuit Court Chief Judge James Shake regarding Sandra McLeod (now McLaughlin's) conduct -
"It's extremely inappropriate and unprofessional. . . . It's intolerable."
The Courier can't seem to get all the facts in order since McLeod McLaughlin was a prosecutor with the Commonwealth Attorney's Office and not the County Attorney's Office. And, their reference that Prather was a "tool and die maker" seems to ignore the fact that in addition to being a hard worker in the trenches that Prather also was a labor relations specialist involved in negotiating conracts at GE, a union steward, and a delegate for several years with the Greater Louisville Central Labor Council.
You can count on Claude to do the job. He treats lawyers and litigants with respect. That's what a judge is supposed to do.
I will share this bit of advice I received from "Claude" back when we were both on the campaign trail in 2002, and I had to go speak to the various groups regarding their support. I remember his advice - "Don't let them make their cause, your cause." As a judge, you have but one cause - justice. He followed that ethical guideline during the campaign and on the bench. I understand he still maintains that independence.
We deserve a judge who works as hard as we do; Claude is one of those judges. He has not slowed down a bit, and has a love for the job and for people and for doing the right thing.