Caleb O. Brown

BY CALEB O. BROWN (for Louisville Eccentric Observer)

Gov. Ernie Fletcher’s tax plan is reborn, with changes here and there. A few of the tweaks have encouraged his ideological boosters, but some have left the same allies scratching their noggins.

Flashback to last March: The first Fletcher tax plan was unveiled just as legislators were in the final weeks of canoodling with the state budget. The “revenue-neutral” plan included cuts in corporate and personal income taxes, a 26-cent hike in the cigarette tax and various other tax cuts, hikes and shifts aimed at improving Kentucky’s standing in the region as a place to conduct business.

The General Assembly’s efforts went nowhere; one year later state government still lacks a formal spending plan. In that period, the governor’s rhetoric and tax plan have shifted, if only slightly.

“Revenue neutral is a term that we’ve used,” Fletcher said of his tax plan late last year. “I think tax neutral is probably a better term in the sense that we don’t want to increase taxes on working Kentuckians.”

Grover Norquist is president of the Americans for Tax Reform. During a visit to Fletcher last month to talk up tax reform efforts, he said, “I’m not sure I’m aware of the distinction.”

In 1986, ATR created an unqualified “Taxpayer Protection Pledge” that Norquist and Co. cajoled some federal and state legislators into signing. It’s a formal pledge to oppose all manner of tax increases. (In Kentucky, Fletcher, 17 of 38 senators, and 31 of 100 House members have signed the pledge.) Since Norquist’s January visit, a few Kentucky legislators, including state Rep. Steve Nunn, R-Glasgow, have divorced themselves from the pledge, saying they didn’t realize the promise to oppose tax hikes wouldn’t just wither away on its own. Norquist said Fletcher’s tax plan — its first version, anyway — passed muster.

Version 2.0

The second coming of the Fletcher tax plan has a few changes dictated by necessity. Hundreds of millions of dollars in new windfall revenues that are filling state coffers, the governor says, are already spoken for by Medicaid, state worker health insurance and state prisons.

But Fletcher’s changes have left would-be boosters underwhelmed.

Aside from a much larger cigarette tax hike, the plan also diverts millions of dollars in taxes on horse stud fees into a subsidy program for horse breeders. That portion of the plan was included at the behest of state Sen. Damon Thayer, R-Georgetown, a horse industry executive. Thayer says stud fees generate $15 million a year for Kentucky’s general fund.

Thayer, while promoting Kentucky’s “best stallions in the world,” admits that Kentucky is the only major horse breeding state that taxes stud fees, an admission that perplexes Aaron Morris, a fiscal policy analyst at the Bluegrass Institute for Public Policy Solutions, a public policy watchdog group in Bowling Green.

“The best thing to do is just get rid of the tax on stud fees that we have right now,” Morris said. “What they’re trying to do is take with one hand and give back with the other. That entails a lot of bureaucracy. The question is, who are they going to take it from and who are going to be the net recipients from this?”

Bluegrass Institute President Chris Derry has resigned himself to the fact that smokers are going to fund much of the governor’s new spending preferences.

“They’ve gotten together and decided smokers are the ones that will be paying for all of this,” he said.

Derry and Morris long to see Fletcher borrow rhetoric from California Gov. Arnold Schwarzenegger, namely the whole bit about, “[Insert state here] doesn’t have a revenue problem, it has a spending problem.” Both are happy to see Fletcher tackling tax reform, but they don’t think the state’s situation will improve significantly, even if Fletcher’s plan is followed to the letter.

Speaking to a tax forum audience in January at the University of Louisville, Lt. Gov. Steve Pence brought up the role of taxes in making the state competitive in attracting new businesses. “When you’re talking to businessmen about bringing a business here, you have to have a tax structure that is friendly to them,” Pence said.

“We are 44th in the nation in terms of being tax-friendly to businesses,” he added, citing Kentucky’s rank by the nonpartisan Tax Foundation, a Washington, D.C.-based non-profit educational organization founded in 1937. What Pence did not say in his speech was that a Tax Foundation economist found Fletcher’s first stab at tax reform would only move Kentucky up three spots, to No. 41.

In an interview, Pence said, “Moving a few notches would be an improvement,” but added that he thinks Kentucky’s tax code will prove more attractive to businesses than the foundation would make it appear.

Fletcher, in an interview, said, “I don’t think that we’re going to be behind the other states at all.” He said the foundation analysis focused on Kentucky’s higher individual tax rates and that his plan has triggers that would lower individual tax rates as state revenues grow. The newer Fletcher plan has a steeper cut in personal income taxes. The Tax Foundation has not analyzed the new plan.

Reform on a shoestring

The governor has become enamored with a December 2004 report titled “Kentucky’s Economic Competitiveness: A Call for Modernization of the State’s Fiscal Policies,” issued by University of Louisville economist Paul Coomes, in which he discusses the factors hindering the state economically. But if Fletcher and Coomes agree that Kentucky’s economy is not competitive, they don’t agree on why.

The report was written for the chambers of commerce of Northern Kentucky, Lexington and Louisville. It found that urban centers (Louisville chief among them) are the economic engines of Kentucky, and it said Kentucky’s tax system and spending priorities force urban centers to be net donors of tax dollars. For example, for every dollar Louisville taxpayers send to Frankfort, only about half comes back in the form of state services.

“[Coomes] wasn’t just talking about rural versus urban, he was also talking about where Kentucky falls behind other states when it comes to the types of jobs we’ve created,” Fletcher told Rotarians last month. “He also pointed out that we haven’t been able to progress in professional services and that our percentage of professional services jobs is much lower than the national average.”

Economists dream of having the ear of a politician. Fletcher’s clear articulation of some of Kentucky’s economic problems is encouraging to state economic development experts, but Coomes’ ideas to address the very problem to which Fletcher referred seem less palatable to the governor.

The report provides several recommendations for ramping up the state’s economy, but one idea Coomes has floated has raised some eyebrows. He thinks a simple way to kickstart it would be by helping Kentucky’s urban centers while attracting “new economy” jobs.

“We could move a lot of the state workers to downtown Louisville,” he said. “There’s no reason that all the several thousand of the state professional workers need to be a few miles from the governor’s mansion.”

According to the report, moving the jobs to Louisville would strengthen the metropolitan area’s ability to attract some of the needed ingredients for a productive economy, including conventions and information-age jobs, and help boost revenues to better fuel the economic engines of the state.

To whit, Coomes asserts, Nashville and Indianapolis, to name two of Louisville’s chief regional competitors, have an advantage because they’re state capitals and therefore reap the ample state bureaucracy and professional service jobs.

Fletcher isn’t about to touch such a radical idea.

“When you look at the political feasibility of that, it’s just not there,” he said in the interview.

Coomes has heard this line before. This is, after all, the third time he has shared some of these findings. (The recent report updated and extended one study published in 1994 and another released in 1999.) While politicians still don’t see these ideas as politically feasible, over the past 10 years, they have gained currency among legislators. This time politicians are listening even more and discussing the merits of the study. Maybe a fourth study will convince Kentucky’s political leadership to trust Coomes’ advice — and not just borrow his rhetoric — to resolve Kentucky’s economic problems.

By Caleb O. Brown
Staff Writer (Snitch)

Custody battles, charges of bias spark nationwide class-action suit

Any child of divorced parents knows the drill. The weekend is over and it's time for Dad to say his goodbyes and send his progeny back to Mom's house. The parents meet up for the handoff at a restaurant, rest stop or any other large concrete structure with a parking lot, provided it's about halfway.

The handoff — awkward, quick and joyless — means moving luggage and a child from one car to another. The kid wants none of the stilted discussion, avoiding the sight of the two most important people in her life exchanging mirthless pleasantries just long enough for Dad to give his goodbye kiss and then pull away.

The marriage wasn't perfect, the breakup wasn't clean, and no one is happy with the result. Still, for many splintered families, the above handoff would be a dream. Some fathers and mothers are trapped in legal battles without end, fighting not for scheduled visitations, but for any visitations. Spending significant time away from their young children has left these non-custodial parents depressed, worried their own young children may begin to forget them. In some cases, the custodial parent realizes the power of wielding a child as an emotional, legal and financial weapon to injure a former spouse.

In an adversarial court system, there are always two sides. In child custody cases, one side — the non-custodial parent — seems to lose more than the other. Sensing a pattern, hundreds of thousands of non-custodial parents are signing on to a nationwide class-action lawsuit that seeks a redress of what they feel are serious, consistent problems and biases in court systems across the country. The end result of those problems, the parents claim, is a consistent violation of the constitutional rights of parents to be parents.

The following Kentucky fathers represent one side of this contentious battle.

The first thing she took was our lawyer

Michael Peters got divorced in 1995. His two kids (neither the ex-wife nor the children will be named here) were 4 and 6 at the time.

Peters won't say precisely that he hates his ex-wife, but he'll say this: "I despise what she does."

Those actions, he says, include: absconding with the children to another state when they were supposed to be with him for the Christmas holiday; telling the kids it's their father's fault she has to go to court; three contempt of court orders for interference with court-ordered visitations; and — the winner by a comfortable margin — moving to another state without notifying him or the court.

Peters says his "personal struggle" has been made worse by a slow family court system that, nearly 10 years later and in spite of regular illegal interference from his wife, has not granted him anywhere near half his children's time.

"It's not equal time, not equal financial support. It's very much stacked. My ex-wife gets the lion's share of my children's time. I've done my part. I've followed the court rules. I've never had a negative issue in my own personal case. The only ground that I feel like I can maintain is when I petition the court. But that's time and money, and there's only a finite amount of that. There's not much incentive to do anything different. You fight so long, and years go by, and it goes on and on."

And fight he has. Peters says he's had to develop several means to get his wife to comply with his court-ordered child visitations.

"With my case, that has been the only way that I can really see my kids," he says. "If I were to do nothing, I would not get to see my kids, even with a court order. There's a well-documented history of visitation interference. I go to pick up my kids and they're not available."

When his ex-wife remarried within a year of their divorce, it was to a man in the military. When he was moved, she went with him, taking the kids and not informing the court, or her ex-husband, that she was doing so.

"She just left, packed up in the middle of the night," he says. "The kids didn't know they were going. So it was this big secret. Three months later, I finally get a call from the kids, but they don't know where they live."

The children were 5 and 7 at the time. It took Peters another three months to learn the location of his children and get a court order to see them. They met in Oklahoma City, spending a few days with each other in a hotel room, but he says it took a year and a half in court to get a physical address for his children.

To deal with other violations that he says are ongoing, Peters sends registered mail to document communication with his ex-wife. With child support checks, he encloses the court-ordered terms of upcoming visitations. Shelling out a few bucks for registered mail is far cheaper than hours of attorney time, which he says has consumed about $30,000 over the past nine years. At $125 an hour, Peters says access to his children definitely carries a pricetag.

"I'd just get angry if I kept a tab on it," he says.

Other expenses have included having off-duty police officers come with him to collect his children, even if it's only to prove the children weren't available when his ex-wife said they would be, and to have a credible witness to testify to that fact.

"We have a colossal case history," Peters says. "They say we have eight volumes and over a thousand pages of case history. It is quite literally a foot-thick court record of all the actions that have passed through there." It would be even thicker, he says, if he'd learned right away to use the tactics he's using now to see his kids.

With registered mail setting the tone for his relationship with his ex-wife and a series of fines and court orders keeping his children visiting regularly, Peters says he shouldn't have to fight so hard in a situation that's already slanted heavily against him.

He also says he loves being a dad and wonders why the court system continues to "just put a Band-Aid on the problem" of bias.

The court seems capable only of dealing with his wife's violations with contempt of court orders and fines or awarding him make-up time for missed visits, he says.

"Make-up time is fine, but it doesn't fix the problem," he says, adding "the court system is so biased in favor of women in general," that it's hard to see how his situation could change.

"I want to see my kids. I want to be an important part of their lives," he says. "It's a frustrating road as an individual, and that's where this class action is very appealing. There is strength in numbers. I'm not the only person. Together we have a louder voice, and maybe we can make a difference. For me, personally, this likely won't impact my situation with my children, but it might help somebody else."

Judgment days

Robert Wilkins has joint custody with his ex-girlfriend, Amanda, of their daughter, Camille. In the last two years — since Oct. 6, 2002, by Wilkins's recollection — he has spent 19 hours with his daughter.

Wilkins knows he's not the best example of a non-custodial parent, but says that doesn't change his right to be one. He says he owns his mistakes.

A few months into dating Amanda, a woman he admits he "had no business with," she became pregnant. He was 30. She was 21. Feeling the obligation he'd helped create for himself, Wilkins and she moved in together. He worked as she stayed home with their daughter. As the relationship began to crumble atop its poor foundation, the pair agreed to separate.

It was all going well until they had to get down to the nuts and bolts of custody of their daughter.

In August 2001, as Wilkins was emerging from a shower, he says, Amanda had taken a sleeping Camille from her bed and was ready to leave the house once and for all. It ended in a Domestic Violence Order against Wilkins.

"We were in a confronation. She wanted to take my daughter who was asleep upstairs." Wilkins says he pulled Amanda's hair in an attempt to keep her from taking Camille from him, but says that was the extent of any physical confrontation.

"I made a dumb mistake," he says. "I've paid for it for three years."

That DVO, he says, was used as a club against him in court as he's tried to fight for some arrangement for regular time with his daughter.

"It took five and a half months for me to even get visitation with my daughter," he says, and that came only after the case was, perhaps mistakenly, bumped into another courtroom, that of Juda Hellman.

"Once I got into Judge Hellman's courtroom, I started seeing my daughter every other weekend and every Wednesday," he says. "Thank God for her."

This went on for seven or eight weekends in a row. Over the same time, his ex-girlfriend's attorney somehow got the case bumped back in front of his original judge, Joan L. Byer.

"Ever since then, I haven't seen my daughter but 19 hours," he says.

The DVO, combined with ongoing allegations of abuse and drug use from his ex-girlfriend, meant Wilkins is stuck without his daughter. All of the allegations, Wilkins says, were thrown out. All except the guilty plea on a DVO, a "nightmare" for Wilkins to overcome.

"Since then, I'd been able to see her through supervised visits, one hour a week at Family Place."

Family Place proved to be an emotional roller coaster for Wilkins. Through a steel door in the lower portion of the building, Wilkins says staff ran magnetometers over his body, a police officer patted him down before allowing him to sit in a 10-by-12-foot room with Camille for one hour.

Those visits, Wilkins says, were often observed by young volunteers who would author reports and submit them to the judge. And though he treasured those hours (among the final 19 he spent with his daughter), the experience proved to be too much for him to take anymore.

"Camille would cry and say, 'I miss my Daddy already.' It was heartbreaking. It was a happy moment when we'd see each other, and then heart-wrenching when she would leave because you'd have one or two minutes until the clock hits 12 and you're just watching the clock go away. You're thinking, 'My God, I'm not going to be able to see her until next Tuesday. How horrible can this be?'"

Wilkins says Family Place staffers would then whisk his daughter out of the room and the "three-day letdown" would commence. The cycle of the letdown after a visit and the buildup over the weekend to the next visit left Wilkins drained.

"I couldn't work," he says. "I couldn't do anything but focus on hatred for her mother, for the judicial system, for her family, for what they'd done. I just had to let it go."

The last time he saw his daughter was during a court-ordered custody evaluation. That evaluation, at a cost of $3,000 and several months, turned out favorably for Wilkins, and he's currently waiting for the judge to decide how to weigh the report. That won't happen until his next hearing in January.

The DVO has fallen off Wilkins's record, but he says more allegations against him are forthcoming.

"They're using new things now — I'm a druggie. I'm a steroid user. I have manic-depression."

Wilkins says he's at least thankful his ex-girlfriend has recanted her claim of child sexual abuse against him. He's hopeful the class action lawsuit will help him "have a healthy relationship" with his daughter.

"I can't get back the time, but I don't want her to be 15, 16 or 17 years old saying, 'Where were you, Daddy?' I want to be able to tell her, 'I was there fighting for you and I was waiting for you.'"

Unstacking the decks

Wes Collins is coordinating Kentucky's class-action lawsuit on behalf of non-custodial parents.

The stress of trying to literally build a home with his wife and two children was too much. His wife took the children and left while he was at work one day. The resulting legal mess and the alienation of his older child have left him jaded about the legal system.

Much of the systemic problems he sees in the court system dealing with non-custodial parents deals with poor controls in how cases are handled and too much judicial discretion. Add what he sees as a prevalent and often open bias against men and he says that's a recipe for the violation of parental rights. He says tapes of his own pretrial hearing in his Fayette County divorce exist, but he's been unable to find them. Fayette is among counties that record pretrial conferences.

Just after the divorce, Collins's now ex-wife was awarded full custody of both children following a hearing in which Collins had no counsel.

A weekend visit from Collins's son ended with a terse phone call in which says his ex-wife's boyfriend threatened to "bust his f***ing head."

He didn't want to return his young child to a home he felt was threatening to him and his son, he told his ex he would call her back to make final arrangements. She did not answer the phone again.

Within days of calling police to report the threat, Collins says he was facing a claim from his wife of refusing to return their son as scheduled.

Collins's attorney asked to be dismissed, and Collins's request for a continuance to get an attorney to represent him was denied in the hearing.

Collins says he attempted to explain his call to police, but was ordered by the judge to undergo a mental evaluation at a facility she chose. After the evaluation, the social worker involved recommended Collins attend her domestic violence class.

"Boy, I sure wish I could rule business in my favor," Collins says. "It's been a nightmare."

Collins hasn't seen his 5-year-old son in seven months, and is now limited to speaking with him by telephone. He says his ex-wife interferes with the scheduled calls.

Legal mumbo jumbo

The nationwide effort at organizing the class action on behalf of the parents is organized by the Indiana Civil Rights Council (indianacrc.org). That group has been so swamped with requests for information, the coordinator of the national class-action effort, Council president Torm L. Howse, is now just sending out an informative e-mail to potential plaintiffs.

The basic parameters for parents who want to be a part of the suit is that they be a legally designated non-custodial parent with a minor child for whom child support is still being paid. The parent must also have never been convicted of any serious abuse or neglect of the child.

Collins says the claims against the courts are fairly broad in attempting to bring abuses to light: the violation of rights of both parents and children and the willful mismanagement of government. The violation of rights, the plaintiffs say, is as simple as freedom of association and equal protections under the First and 14th Amendments.

The Indiana Civil Rights Council estimates — the group calls it a conservative estimate — more than 16 million non-custodial parents could sign onto the suit, which they estimate will seek an estimated $48 trillion.

By Caleb O. Brown
Staff Writer

If Kentucky's Election Day is a cacophonous, 12-hour game of chess, Trey Grayson's job is to set the board correctly. As Kentucky's secretary of state, he's got one chance to get it right.

But no amount of planning can completely eliminate vote fraud.

"On some level," Grayson says, "it is still going on."

As a year with federal elections on the ballot, Grayson isn't alone in trying to assure a clean election. In addition to investigators from the Kentucky Attorney General's Office, FBI agents are at the ready to wring a little more honesty out of their investigative interviews. Lying to the FBI is a felony.

Efforts to keep the participants in this fall's election honest are bolstered by recent federal vote-fraud and vote-buying trials, sending a county judge-executive to federal prison for two years and convicting others of illegally funneling money to various campaigns.

The message, therefore, is clear: The feds are watching closer than they have in years past.

Grayson's office doesn't investigate vote fraud, so he'll meet with attorneys from Greg Stumbo's office and the U.S. Attorneys and talk about which races are sending up red flags. Neither Grayson's office nor the Attorney General's Office is saying if they've already got specific leads on possible election fraud in the state.

Red flag No. 1: A high number of absentee ballots cast

In the May 1998 primary, 9,000 Knott Countians voted. Tom Self, a former assistant U.S. Attorney under Greg Van Tatenhove, said more than 1,000 voters used absentee ballots, a higher percentage than any other county.

And since this particular primary ballot, at least the Republican ballot, had a U.S. Senate race on it, the feds got the chance to investigate. And many absentee voters spilled their guts.

In March, Knott County Judge-Executive Donnie Newsome was sentenced to 26 months in prison for vote-buying and conspiracy to do the same. Newsome is serving as judge-executive from jail.

Scott Sutherland, director of the attorney general's division of special prosecutions, says trials like Newsome's have had something of a chilling effect on vote fraud throughout the commonwealth.

Grayson says absentee balloting can be an especially effective way to purchase votes, since the buyer can actually watch the vote being cast and then see the ballot dropped in the mail.

Restrictions on absentee balloting have become much more stringent in the past decade. Sutherland says with proper controls, absentee balloting can work well to minimize voter fraud.

Red Flag No. 2: Nail-biters

Vote-buying seems to crop up most when a local race is hotly contested.

The same election in the same county in which Donnie Newsome was convicted of his crimes, another — though not completely unfamiliar — group of folks were discovered to have attempted to engineer a victory for a whole slate of candidates. Self, the former assistant U.S. Attorney involved in the case, said he loves the story.

The group purchasing votes recruited students from Alice Lloyd College in Pippa Passes to register and then vote for a slate of candidates.

"The students who had registered were taken to the polls and voted by absentee ballot," he said. "They were given the stickers that said, 'I voted.'"

Those students were then taken to a general store in Pippa Passes and instructed to purchase a peach Mr. Fizz soda.

"I've never heard of it ... cheap soda," recalled Self.

The combo of the particular beverage and the "I voted" sticker was the signal. The young voters were given $35 over and above the change from the soda.

Five people were either convicted or pleaded guilty to vote-buying in that scheme.

Red Flag No. 3: Assistance, please!

Vote buyers like to know what they're getting, hence absentee ballots become hot commodities for them. Trust often isn't enough to make sure votes get cast the way they're supposed to.

Impaired voters can bring someone to assist. Or, if the voter is selling his vote, he brings someone to make sure the right candidates get picked.

It's not a preferred method of buying votes, since it requires several things. A paper record indicates who is providing assistance to whom. Paper trails can be troubling for the vote buyer and seller alike.

Eastern Kentucky has a reputation as election fraud central. Grayson says so. Self agrees, saying the peach soda vote-buying scam could occur "only in the mountains." Sutherland isn't so sure, saying that it's not really fair to generalize about regions of the state. He says the true indicators are hotly contested races and high absentee balloting that can occur anywhere.

The attitude that has earned Eastern Kentucky its reputation for vote-buying can be summed up as, "It's my vote and I can sell it if I want."

According to both Grayson and Self, that attitude has largely gone away.

"The attitude still exists," Self said, "but responsible voters, especially the younger generation, want nothing to do with it."

By Caleb O. Brown
Staff Writer

Gale Cook works hard. She's the commonwealth attorney for Kentucky's 42nd judicial circuit, made up of Calloway and Marshall counties in Western Kentucky. She's also head of the state's Commonwealth Attorneys Association. More than a few cases cross her desk each week.

"For the last three years, we were averaging 435 felony indictments per year," she says. Split with one assistant, that's 217 (or 218, depending on your math) cases per attorney.

Cook says Dave Stengel, her counterpart in Jefferson County, has assistants working between 75 and 100 cases a year. And many of those attorneys are focused exclusively on prosecuting drug crimes or child sex abuse.

Cook's office, like Stengel's, must handle each and every case filed in her circuit. She says she's got to stay vigilant when checking up on court-ordered restitution payments, working with police to help assure their investigations remain above board and presenting cases to grand juries and advising those juries on the substance of the law.

But over her shoulder is the knowledge that the workload, this year, is getting worse.

"In the first six months of this year, we have returned 311 indictments," she says. "If we continue at the rate we're going, we'll hit 600 indictments this year."

Cook estimates, at a 40-hour workweek, that works out to about 6.9 hours per felony. But she doesn't work 40 hours a week. It's at least 60 and sometimes 90 hours a week to get the job done. She knows she does a good job for her judicial circuit, but ends her days very tired. Cook says "very possibly" a time will come when all she's got simply won't be enough to do the job.

The title of "Most Overworked Public Servant" is hotly contested.

Ernie Lewis, Kentucky's Public Advocate, says the public defenders he oversees grapple with towering caseloads admirably. Cook's office may end the year with 300 new cases per attorney. Kentucky's public defenders could average 500.

"Since I've been public advocate, since 1996, we have not had caseloads that were at a level that meet national standards," Lewis says.

Statewide criminal circuit court filings in fiscal 2004 were almost 50-percent higher than 1996 levels. Manpower and funding have not kept pace for a variety of reasons. Cook says, in light of tight budgets, the strategy for dealing with state government budget cutters has been simply, "Please don't cut us."

Cut and run

With two consecutive state budgets delayed over disputes between the governor and the General Assembly, including a budget that should currently be governing state spending, prosecutors continue to feel the squeeze.

The result for Gale Cook is working the occasional 90-hour week. For Ernie Lewis, it means accepting a different, but equally harsh reality, the possibility that defendants under the counsel of his office may plead guilty to crimes they didn't commit.

Plea deals are a healthy part of the legal process, Lewis says, but "the caseload problem encourages plea negotiations." Some cases, he says, end up in a plea deal when a trial is justified. But the hours involved for both the public defender and the prosecutor may make a jury trial virtually impossible. That leads Lewis to his "greatest fear" as head of the public defender system, "people are ending up entering a guilty plea when they are in fact not guilty of what they're charged with."

Towering caseloads for both sides, he says, creates "an immense incentive to resolve the case with a guilty plea."

Things aren't (that) tough all over

Linda Talley Smith, Commonwealth attorney for Boone and Gallatin counties in Northern Kentucky, says the spending freeze instituted across state government in December kept Commonwealth attorneys from adding new staff. Smith had to get a special exemption to even replace an assistant attorney who took a maternity leave.

Smith's judicial circuit leads the state in filings and closings, each numbering more than 2,000 in the last fiscal year.

In the first half of this year, Smith's office received 385 felony indictments. She says the numbers have been increasing "at about 27 and a half percent every year" since she took office in 1997.

But Smith isn't quite pulling her hair out. Her relatively urban circuit has been growing in population at about the same rate as felony indictments. New poplulation in her circuit may be helpful when she has to justify a bigger staff budget. It will also help when her circuit attempts to get another judge to handle the cases.

And to handle a similar number of felonies as Gale Cook in western Kentucky, she's got more than twice the staff. She's got three full time attorneys and three part timers in her office, not to mention five law school interns from Nortern Kentucky University that she "couldn't get by without."

The crimes are also different. As the commerce hub of Northern Kentucky, Boone county's crime increase has more to do with felony theft and bad checks than illicit drugs and murder.

Gale Cook and many other rural prosecutors can sum up the caseload problem in a word: meth.

The problem

Cook says methamphetamine cases, virtually non-existent less than 10 years ago, have "inundated" her office. Cases involving hard drugs in one way or another have made up most of the increase. As much as 80-percent of the increase is attributed to hard drugs. Most of those cases deal specifically with meth. And for those who don't have meth listed in the charges, the cases related to meth are growing, as well. Cook has seen youth burglary rings in which young people trade their stolen wares, often guns, for methamphetamine.

The meth trade is becoming more sophisticated as it grows.

"Through extensive investigations and interviews, what we've found is that we have organized crime here," Cook says. "We have enforcers. We have meth manufacturers that sell to middle-level distributors. It's organized crime."

Meth cases also constitute a rapidly growing share of criminal filings in circuit court.

A selection of circuit court cases specifically dealing with meth (see chart) in Calloway and Marshall counties has quadrupled from 1999 through 2004 fiscal years. Statewide, the same types of cases have more than quintupled. Criminal circuit filings overall have not grown at nearly the same rate.

Easing the burden

"The needs of prosecutors have long not been addressed by the General Assembly," says Attorney General Greg Stumbo. "As the legisiatlve body enacted more criminal sanctions, cases became more complex and more voluminous."

In Stumbo's 24 years in the General Assembly, he says he was "as guilty as any" legislator when it came to voting to criminalize more behavior.

"Sitting there enacting those laws," he says, "I didn't see the impact it had on the prosecutorial and the public defender systems."

But the time for Stumbo to do something about that is gone. Now, as Kentucky's highest ranking law enforcment officer, he has to enforce the law, not make it.

Stumbo's office is largely responsible for divvying up money to commonwealth attorneys statewide and says he's well aware of the drug problem in rural areas.

Stumbo says the caseload problem "is particularly exacerbated by all of these drug roundups going on right now."

Stumbo would like to establish regional extensions of the Attorney General's Office to offer investigators and prosecutors to help handle large drug cases on an as-needed basis.

He'd also like to expand "rocket dockets" to more portions of the state. Those dockets help identify cases most likely to enter plea agreements and get defendants into those plea agreements as soon as possible.

"There are 18 new jurisdictions that we have convinced to try this particlar program out," Stumbo says. "At the end of a year we'll look at what they're doing and what we can do."

The high cost of the legal system amid rapidly increasing drug crime isn't lost on Steve Pence, Kentucky's Justice Cabinet secretary and lieutenant governor. His drug summit earlier this year was aimed precisely at taking stock of Kentucky's existing drug-fighting resources.

Stumbo was among those making recommendations alongside Pence. Stumbo's particular hope of having prosecutors and investigators at the ready statewide is one of the recommendations put forth at the drug summit under the heading "coordinated prosecution."

Pence's focus since earlier in this year has been to push drug treatment and an expansion of drug court, though he's quick to point out that treatment is just one of three planks of his drug-fighting platform. The others: continued vigorous enforcement and expanded prevention.

Drug court appears to be the linchpin in Pence's plans to divert first offenders out of jail and into treatment, which he says is more effective and less costly than a stint in jail.

Funding drug court, Pence says, could be achieved in small part through assets seized from convicted drug criminals. The summit itself was funded with seized assets.

Hello? Over here!

Ernie Lewis sat on the drug summit's treatment panel. He's encouraged by much of the work done there, but says his caseload problem is still getting worse. Expanded drug court and treatment, he says, would likely help public defenders over the long run.

Lewis's problems are more immediate. A draft of the Public Advocate's annual defender caseloads report obtained by Snitch shows that in fiscal 2004, overall caseloads of public defenders were up 9 percent. Cases going to trial were up 9 percent, a higher growth rate than in years past. Funding per case, conversely, is in decline.

"Federal funds are coming in to create these task forces to arrest more people," Lewis says. "Some of the money is going to hire state prosecutors to prosecute in state court, and we're not going to get any of that funding."

Lewis has spent much of his time as Public Advocate establishing full-time offices for public defenders. Those offices now cover 112 of Kentucky's 120 counties. Eight years ago, when Lewis became Public Advocate, full-time defenders covered just 47 counties.

"Courts and prosecutions and defense need funding parity," Lewis says. "If prosecutors can send in prosecutors for large drug busts, then we need the same ability."

Lewis is quick to point out, however, that he doesn't believe Kentucky's prosecutors are by any means overfunded.

Public defenders' caseloads are 85 percent higher than what Lewis cites as a national standard. He has a familiar refrain that is lately reaching a fever pitch.

"We're at saturation point. We cannot play the role that is expected of us until we get significant new funding."

By Caleb O. Brown
Staff Writer

Nearly three years after 9/11, only frequent fliers seem to know the new rules of flying

Sarah B., by her own description, shows little modesty. SheÌs also a cynical traveler, given to telling friends, "All this security stuff is just to make stupid people feel secure." The Cincinnati native is, however, just modest enough to request that her last name not be included here.

Accustomed to setting off airport screening devices, Sarah can name half a dozen possible culprits when the magnetometer sounds off: her underwire bra, the wire in her jaw installed after surgery, and various other bits of metal on her clothing, including the tiny metal buttons on her jeans. Even her nipple rings set off screening equipment regularly.

But when a friendly airport screener in Cinci discovered SarahÌs chest seemed unusually reactive to the metal wands, Sarah told the woman the nipple rings were the likely culprits.

"She said, 'WeÌre going to have to check that out,' and I said, 'Are you serious?'"

She was.

Sarah was led behind a screen near the checkpoint, where she pulled her low-cut shirt down and showed the woman her piercings. Sarah says she was more annoyed at the inconvenience than at baring her bust to a stranger.

"After that, she patted me down," Sarah said. "She was behind me and she patted me between my breasts, among other places. It really wasnÌt that big of a deal. It probably would have been very upsetting if I had been anyone else. If I'd been in my regular mood, I would have been highly annoyed."

Seasoned business traveller Ranita Jones was annoyed at a security checkpoint when a metal hairpick, tweezers and an extra butane lighter held her up at the Northern Kentucky airport. She gave the extra lighter to her traveling companion and got it back when theyÌd both cleared the screeners. In 26 years of business travel, Jones has seen her property stay behind at security checkpoints only since the attacks of Sept. 11, 2001.

And like many business travelers, Jones has learned dressing for success is getting more difficult.

"ThereÌs no such thing as dressing for business when you fly anymore," Jones says.

So she doesn't. Underwire bras have been replaced with sports bras. Her jewelry and hair barettes stay packed until she arrives at her destination. In short, she's replaced a business suit with a running suit and leaves little more than travel reading in her purse when she passes through security to avoid having to leave items behind.

Items left by travelers add up.

Transit Security Administration screeners at Cincinnati-Northern Kentucky Internationa Airport collect an average of 100 pounds of questionable property each week.

"It's every single kind of imaginable jackknife, scissors and, for some reason, an amazing number of kitchen knives and paring knives," says Paul Wisniewski, the airportÌs director of federal security. "Ladies often pack fruit on a trip."

Wisniewski says other items that typically fill up bins of the "voluntarily relenquished" include mini-corkscrews with attached mini-knives, multi-tools of several varieties, throwing stars, billy clubs and kubatons.

And guns.

"By now, this fiscal year, weÌve probably had over 500 guns show up at checkpoints around the country," Wisniewski says. Those guns are not voluntarily relenquished to screeners. Police confiscate them in the inevitable criminal investigation.

Buyer pays shipping

Buddy Peterson travels, usually with his wife and children, about twice a year. Since 9/11, heÌs flown in and out of Chicago twice with a keychain-sized Swiss Army knife and a pair of fold-up pliers. The knife was free. The pliers, a stocking stuffer.

"I dropped my keys in the little bucket and they said I couldnÌt fly with the knife and pliers," Peterson says.

His options: take them back to his car, put them in his checked baggage (which was already on the plane), leave them behind or ship them back to himself through the airportÌs mail-back program.

Peterson chose the final option, took his tools down to the customer service desk and got the needed envelope. At a charge of $6 per item, Peterson dropped the envelope in the nearby mailbox.

"What really chapped my ass, I looked at the envelope when we got home and the shipping charge was a dollar twenty-five," he says. "They make it really easy for you to give them your money."

If Peterson had just given up his items and waited a few weeks, he might have seen them avaiable for purchase on eBay from the Kentucky Division of Surplus Property. He might have even saved some money.

The division's eBay identity, "kysurplus," (feedback rating: 135) gets good reviews for its selling practices. User "gpa-termite" recently purchased a six-inch bone carving with intricately cut silhouettes of camels, and wrote, "oughta be illegal to ship so fast and package so well AAAA ++++ thanks."

All auctions conducted by the division include the requirement buyers pay KentuckyÌs 6 percent sales tax.

Airports in Northern Kentucky, Lexington and Louisville turn over hundreds of pounds of confiscated items as surplus every six weeks.

Louisville airport officials confiscate a fairly large number of souvenir bats from the Louisville Slugger plant.

But the division also collects property from BostonÌs Logan Airport and airports in Miami, Orlando, Tampa and St. Petersburg, Fla.

Jill Midkiff, a spokeswoman for the Kentucky Finance Cabinet, says the agency recently received a shipment of 4,800 pounds from Logan and picked up 10,000 pounds of prohibited items on the last trip to Florida.

Those items are sorted into dozens of bins when they arrive in Frankfort. Surplus property sells items to other state agencies so they aren't caught paying retail.

Then the non-profit groups pick over the surplus wares.

"Multi-tools are very popular among Boy Scouts," Midkiff said.

And then, finally, the public gets a crack at some excessively sharp (or blunt) items for sale on the web, sometimes 20 identical Swiss Army knives or Leatherman multi-tools will be sold in the same lot for $40.

And adding up the cash seems to be more difficult than you might think.

Midkiff would not provide hard estimates of revenues from the sale of property turned over by fliers, but says, "Of items sold by the pound ... the average is about $3."

She adds, "We might sell one knife for $60, and we might sell a bucket of scissors for $2."

By Caleb O. Brown
Snitch Staff Writer

You pay to get in, not to get out,” says Paul McCoy, innkeeper at the Jailer’s Inn in Bardstown, eagerly rattling through a list of, ahem, arresting slogans. “We pamper our prisoners … It’s a captivating experience.”

As one of his guests inches toward the front door, weighed down by her luggage, McCoy says, “Breakin’ out, huh?” As if it’s the first time the quip has come to mind.

The woman chuckles politely and tells McCoy she left the key to her room upstairs. McCoy nods, then obliges the departing visitor with some directions out of town.

McCoy likes to refer to his guests as inmates because the Jailer’s Inn was, until 1987, the Nelson County Jail, the oldest operating slammer in Kentucky.

Now it’s a popular bed and breakfast in the center of Bardstown’s historic square.

McCoy, as much as being the innkeeper, has also been thrust into the position of local historian. Stories from centuries past amble back to him through elderly locals, brittle books and even the occasional former inmate.

And McCoy, a clean-cut blond with a broad grin, enjoys retelling them, his eyes widening at key moments in numerous tales — true, legendary and otherwise — of jailbreaks, famous inmates and recent ghost hunters who sometimes appear in search of the supernatural.

The jail

There was a wooden jail on the same site before the current stone structure.

Short and sweet, that jail’s story goes something like this: Around 1790, a husband and wife in Nelson County had a spat. The wife had the police put her husband in jail. A short time later, she decided she’d been without her beloved long enough. After being refused the company of her husband by the sheriff, the young lady hit upon a solution: Burn the jail and get her husband back — preferably uncooked. And so she did. But crime does not pay. She was caught and convicted.

Rather than accept a year in jail, the woman submitted to 40 lashes on her bare back in the court square. Or maybe it was just five, McCoy says, noting a second version of the story. Mere details.

The current structure is two parts. The front was built in 1820 with 30-inch-thick limestone walls, inch-thick iron bars on every window and topped with a high ceiling of black, 18-inch oak beams. When Kentucky law demanded that the jailer live on site, the front was converted to housing and another building was attached to the back for prisoners. A separate cell with a solid iron door was maintained for females, complete with its own private shower. It’s the only room at Jailer’s Inn that still looks like a jail cell, with iron bunks on one wall.

McCoy added some softer mattresses and a waterbed.

All of Nelson County’s jailers have been men, with one exception: Maxie McCay, jailer from 1950-62. After the death of her husband, Mrs. McKay was elected jailer to continue his job, but also to keep a roof over her children’s heads.

McKay’s matronly face looked more suited to adorn cans of “homestyle” soup or marmalade and simply not the face you’d fear in jail. After all, this is a woman who turned the “upstairs dungeon” into a room specifically for curing hams.

But McKay knew more about running a jail than many would have initially given her credit for. She rewarded good prisoners with “trusty” status, allowing them home-cooked meals and frequent trips into the courtyard behind the jail. Poorly behaved prisoners had their diets switched from ham and gravy to bread and water. Dietary discipline usually worked like a charm.

McCoy says many of McKay’s children and grandchildren, who grew up in and around the jail, recently held a family reunion at Jailer’s Inn.

In 1970, McCoy says, an 18-year-old woman — arrested for passing bad checks — tried to escape from the relatively posh cell. She stripped down to nothing, soaped herself up and tried to slide her slender frame through the iron door’s portal through which the jailer would pass meals. The young woman got halfway through before she got stuck. With the help of jailer Norris Conder, a doctor and the “Bardstown Night Police Chief,” the woman was soaped up further and popped through the portal. She paid court costs, fines and restitution and was released.

McCoy details another daring escape in the jail’s final year as such, this one with more soap sophistication.

Wayne Greenwell and Doug Hamilton, both of Bardstown, found themselves on the wrong side of the jail’s iron bars. Early one Sunday morning in 1986, they decided they wouldn’t be staying. Fashioning a phony gun barrel from two bars of soap and some ink, the men covered the fake barrel with a small rag and forced the deputy jailer to turn over the keys.

Their freedom, however, was short-lived, as the law caught up with them.

Behind the jail, a walled courtyard surrounds flowers and an outdoor kitchen.

That new-fangled electricity wasn’t to be trusted indoors, so cooking was mostly done outside. Against the wall of the jail, where flowerbeds now sit, tall wooden gallows stood waiting for the condemned.

Phil Evans learned the meaning of swift justice in Nelson County. Charged with rape in October of 1893, he was kept in Jefferson County for his own safety before the trial. Evans pleaded not guilty on Nov. 9. He was convicted two days later. With townspeople sitting along the high stone courtyard walls, Evans was hanged on Jan. 5, 1894.

McCoy grins as he explains that he likes to serve breakfast in the courtyard on clear days.

Checking the register

Famous inmates included John Dillinger, who stayed one night as he was en route to another, less forgiving facility in Indiana. Legend has it that Dillinger’s fans simply couldn’t bear the thought of their beloved staying in such cold confines and would have sprung him from anywhere, had they only known his name. Dillinger’s keepers, wise to the fact, made sure this particular prisoner checked in under an alias.

Frank and Jesse James stayed at the jail, too, though never as inmates. It was among the places the James brothers found safe haven as they were being hunted for attacks on Union sympathizers. The two outlaws had the distinction of being relatives of the sheriff at the time, A.D. Pence. Pence married into the Samuels clan (of Maker’s Mark bourbon fame) of Bardstown, who were related to the James brothers.

John Fitch, the celebrated inventor of the steamboat (long before Robert Fulton, mind you), is rumored to have died in the Nelson County Jail after he’d developed a habit of drinking a fifth of bourbon each day. The sheriff reportedly cared for Fitch through his final days.

The bed

The rooms have all undergone a great deal of renovation since McCoy and his wife purchased the property shortly after it became available. The rooms barely hint at their former use.

“The 1819 Room” is nicknamed the “upstairs dungeon,” since it was little more than an empty room with several iron o-rings in the floor to keep prisoners from moving around too much. The room now features thick carpeting and a canopy bed. Instead of country hams, small cherubs hang from the walls, and a double-jacuzzi is tucked away in the bathroom.

Several of the rooms feature bits of furniture from different periods, but they blend with a quiet relaxation that comes with rocking chairs, thick quilts and lacy coverings for seemingly everything.

Unreal guests

Paul McCoy has seen a new kind of guest visit since the fall of 2002. The Travel Channel featured the Jailer’s Inn among the 10 spookiest places in America.

Since then, seasoned bed and breakfast guests and ghost hunters have sought out the inn as a place to stay and have a paranormal experience.

A few guests have checked in, only to vanish in the middle of the night, leaving a key on the front desk and issuing a rushed, but apologetic, phone call in the morning as they ride away, clearly spooked by something most guests never experience.

McCoy, reluctant to play up the reports of ghosts and other such visitors to his inn, does admit to what he calls “a unique presence.”

“I believe there’s something here, but I don’t know what causes it,” he says.

Though he says he’s never seen anything unusual himself, he’s sure his pets have.

And the inn’s reputation has also cost McCoy an employee.

“A girl who worked for me, cleaning one of the rooms one day, saw a man in the upstairs dungeon room in the mirror. She turned around and saw nothing. She turned back around and saw him again in the mirror. She got so spooked she ran downstairs and out the front door.”

McCoy says the young woman quit about a week later.

Poor reviews

Aside from the impressive guest register, a few former inmates have left their own mark on their one-time home. “The Nelson County Jail” is among several poems still emblazoned on the jail’s inner walls (and pardon the misspellings).


When I was young I used to mess around
In a little hick place called Bardstown
When one night I went to get drunk
And I ended up on the bottom bunk
When I woke I felt like hell
I was in the Nelson County Jail
The Nelson County Jail is no place to be
If you got a wife and a baby
So if you fell you hafe to raise hell
Stay away from the Nelson County Jail.

“Soon to be Free”

Once I was in the Nelson Co. Jail
They said I was there for raising hell
I tried to tell them that
I was only drunk
But they laughed
and showed me a bunk
They tried to break my soul into
But that’s one thing they’ll never do
They took me away
from the one I loved
And placed me in a cell above
But one day soon I’ll be free
And then it’ll be my ladie and me
When it’s all over and done
I will no longer hafe to run
I’ll be free to live my life
Me, my child and my lovely wife

“Outlaws”

Life as a outlaw is not always fun
You are always out there on the run
You stay ahead of the law for a while
And say screw the world, with style
When the party’s over,
you can always ride
But sooner or latter there
will be no place to hide
You may never know where
they hell you are
You just roam from bar to bar
You may son be known as one of the best
Like Frank and Jesse and all the rest
They were the outlaws who rode thru hell
But even they ended up in jail
So before you head out for life of crime
Think of all the outlaws still doing time

By Caleb O. Brown
Staff Writer (Snitch Newsweekly)

Dixie Suburban Fire Chief Tim Robbins was nervous, judging from the way he continuously clicked the pen in his hand.

The “informal” meeting last Wednesday was called by Metro Councilwoman Mary Woolridge to, she said, “reassure the folks that are protected by Dixie Suburban Fire District that they have good services.”

It’s been almost five months since the fire on Oregon Avenue, which likely claimed the life of Craig Moore. It’s been just two weeks since a state medical examiner, called in to search the home, “saw a foot” sticking out of the debris in Moore’s basement. Jefferson County Deputy Coroner Jim Wesley said the body has yet to be identified.

Moore’s neighbors don’t need DNA testing to tell them that it’s Craig Moore.

They claim fire and police officials ignored requests that they conduct another search of Moore’s home to find his body.

Robbins spent much of the meeting explaining the circumstances that prevented Dixie Suburban fire officials from getting inside the building.

“It took quite some time to get into all of the areas of the fire,” Robbins said. “When we first arrived, the front door — a solid wood door — was gone. The floor, when we attempted to gain entry, apparently had burned away. We learned later that it had.”

An arson investigator didn’t want to go into the basement. “He said it didn’t look safe,” said Robbins. Ceiling and floor collapse, water in the basement and complications attempting to remove the water also impeded search efforts.

“When I talked with the arson investigators and the insurance investigators,” Robbins said, “they were telling me the same thing, ‘We don’t think he’s in there.’”

Craig Moore’s neighbors said the house was boarded up within a week of the fire. Ron Holder — Moore’s neighbor for 28 years — said other neighbors had circulated a petition within days of the fire, calling on authorities to again search for Moore, but authorities did nothing.

“I knew his routine,” Holder said. “Even the mailman was saying, ‘He’s there.’”
Holder asked Robbins why he didn’t know of all the resources available to him and didn’t learn of one key option until just a few weeks ago.

“When Craig Moore’s brother filed the missing person’s report, he learned from the police that they could have used cadaver dogs from the state medical examiner’s office,” said Holder.

Robbins admitted that Moore’s brother was the one who made him aware that his agency could use the cadaver dogs to conduct a thorough search for the body.

“I now know that if there’s a question like that, I can contact those people,” Robbins said. “I had no guidelines that told me that was the case.”

Deputy Coroner Wesley said his office will likely use DNA testing to learn the identity of the body.

By Caleb O. Brown
Staff Writer

Within two days of the terrorist attacks of Sept. 11, 2001, chartered airplanes began traveling to various parts of the United States, picking up Saudi nationals, preparing to leave the country.

One of those planes, an elaborately decorated 727, left Lexington, Ky., on Sept. 13, and one of the passengers who boarded the jetliner was Prince Ahmed bin Salman, best known to Americans as the Saudi horseman who owned War Emblem, the winner of the 2002 Kentucky Derby.

Point Given, another property of the prince, won the Preakness and Belmont Stakes in 2001.

Craig Unger, author of the book House of Bush, House of Saud: The Secret Relationship Between the World’s Two Most Powerful Dynasties, asserts that the flights would have required the approval of the White House, since private air traffic was grounded at the time.

He further asserts there is reason to believe that bin Salman may have essentially been a “material witness” in the investigation into the attacks on the World Trade Center and the Pentagon.

Unger says he obtained the flight manifest for the 727 that took off from Lexington, as well as other flights that crossed the country, picking up as many as 142 people, mostly Saudis, before leaving the United States.

Unger served as deputy editor of The New York Observer and was the editor of Boston Magazine.

Snitch spoke with Unger on April 16, just after the commission investigating the terrorist attacks cleared those associated with allowing those flights (which included members of the extended bin Ladin family) out of the United States.

What was Prince Ahmed doing before he was picked up?

He was in Lexington for the yearling sales, and Sept. 12 he bought $1.2 million worth of horses.

What about Sept. 15th? Those flights took off with the explicit approval of the president, did they not?

Let me back up, because I’m trying to be very careful here. This was a two-week process, really, that started on Sept. 13, as far as I can determine.

The first flight that I was able to nail down left from Tampa to Lexington on the afternoon of Sept. 13.

It was one of eight airplanes over the next two weeks stopping in 12 cities taking over 140 passengers — most of whom were Saudis, but not all of them. Many of them were high-ranking members of the Saudi royal family, and about two dozen were members of the bin Ladin family.

The 9/11 Commission said that the FAA had said the air restrictions had been lifted?

I’ve got the quote here from the commission’s Statement 10, which said the Saudi flights were screened by law enforcement officials, primarily the FBI, to ensure that people on the flights did not pose a threat to national security and that nobody of interest to the FBI with regard to the 9/11 investigation was allowed to leave the country. The commission also says no commercial planes were permitted to fly into, out of, or within the United States until Sept. 13, 2001. The paragraph closes, “We have found no credible evidence that any chartered flights of Saudi nationals left the United States before the reopening of national airspace.” Does that jibe with evidence you have?

Not entirely, no. Commercial flights had slowly begun to resume that day, but at 10:57 a.m., the FAA issued a reminder that private aviation was still prohibited.

Three private planes violated the ban that day, and in each case a pair of jet fighters forced the planes down. As far as private planes were concerned, America was still grounded.

It was at this time, nevertheless, the first flight was allowed to leave. There’s no question it was discussed at the White House.

We know that for certain it was discussed at the White House and Richard Clarke told it to the 9/11 commission.

My point here is not that something illegal was done, it’s that something very, very unusual was done that required a discussion and got a decision at the White House.

Here you have a decision that really speaks to the issue of whether we’re going to do a favor to the Saudis, these wealthy Saudis, or we’re going to aggressively try to figure out on 9/11 and start an investigation in the midst of a huge, huge national security crisis. What appears to have happened was the Saudis get the nod.

When did the White House acknowledge that these flights took place?

The White House has never acknowledged to me. In fact, they denied the flights took place to me, and I had at least seven or eight conversations with the White House.

Didn’t Vice President Dick Cheney appear on “Meet the Press” where he discussed it?

(Secretary of State) Colin Powell acknowledged it on “Meet the Press” and said he believed they’d arranged something, but he didn’t know the details. Dick Cheney said he didn’t know anything about it.

The FAA denied the first flight took place and they said there were no flight logs. The FBI denied it as well.

But we have Richard Clarke, who made the approval?

He was part of that discussion. I don’t know that it’s fair to say he made the approval.

He said, “I think it’s okay if they’ve been vetted by the FBI.” And my point is, I then talked to two FBI people who were parties to it and they said, “Well, we identified them, but we really didn’t interview them.”

I talked to John L. Martin, who was a very high-ranking Justice Department official who was head of counter-terrorism investigations for 18 years.

I talked to Oliver Buck Ravell, I believe the No. 2 person at the FBI. He said one of the first things you do if you’re doing a murder investigation — one person or 3,000 people — is you interview the relatives and the business associates. That did not happen here.

Why do you think Ahmed bin Salman was potentially such a key figure in the Sept. 11 investigation?

I think the definitive account of this was written by Gerald Posner. I went over his report and talked to him. He wrote a book called Why America Slept. Very, very interesting stuff about Prince Ahmed.

In March of 2002, Abu Zubaida, a high level al Qaeda operative was captured in Pakistan. During the interrogation, he explained that there were real links between the Saudi royal family and al Qaeda. He named Prince Ahmed. He knew his phone number and his cellphone. This was considered extraordinarily startling information to the CIA.

They were agog. He was not a likely suspect.

They later took this information to Saudi intelligence and said, “What are we to make of this?”

The Saudis denied it, by the way. When Prince Ahmed returned home to Saudi Arabia, he was found dead of a heart attack at age 43.

Zubaida had named a total of three Saudis. They all — in similar positions as Prince Ahmed — they all ended up dead. What was striking to me was that Zubaida said he was the intermediary between the Saudi royal family and al Qaeda.

But here he is, Prince Ahmed, being ferried out of the country with apparent White House approval, FBI approval, two days after 9/11.

At the very least, one would think this is the place where an investigation begins.

Is this a case of, upon looking back on it, the White House, Richard Clarke and others simply made a mistake?

I’m not trying to be critical of Richard Clarke. I find it striking that President Bush did not respond to the Aug. 6 memo.

I do believe reasonable people can disagree about the extent to which terrorism should have been front and center on his agenda prior to 9/11.

After 9/11, believe me, it’s got to be the first priority.

Remember, the World Trade Center is still in flames. We think the death toll was still 10,000 at this stage. America was shocked beyond belief. Why is it that our first priority was to allow these Saudis out of the country without questioning?

Think about it. Fifteen of the 19 hijackers were Saudis. We know the funding for al Qaeda was Saudi. The infrastructure of al Qaeda, the Saudis play a huge role.

This is where the investigation should have begun.

By Caleb O. Brown
Staff Writer

Attorney General-elect Greg Stumbo had an idea in the fall of 2002 that he’s been pushing ever since: a new division of the Kentucky State Police to focus more directly on drug and terrorism investigations, funded through a new 15-cent-per-pack cigarette tax.

The new agency’s name: the Kentucky Bureau of Investigation.

But questions about KBI and how it would operate are getting lost in the whirlwind of political change in Frankfort. Out with the old regimes and in with the new.

As Republican Gov.-elect Ernie Fletcher recovers from shoulder surgery, his administration is rapidly being assembled.

For Stumbo, his administration is settling in, too, except, spokesmen say, the outgoing House Majority Floor Leader is now saddled with additional duties to help the Democratic Party regroup after it lost the governor’s office, the biggest bully pulpit in the state.

Not familiar

In the year since he floated the idea of the KBI, Stumbo introduced a bill in the Kentucky House to create and fund the agency. It never got a hearing in committee.

Fellow Democrats on the House Revenue and Appropriations Committee don’t know much more about Stumbo’s plan.

“I’m not familiar with it,” said Democrat Bob Cherry, co-chair of the committee. “I do know that it’s been part of his campaign. He is interested in it. I have not seen a detailed plan, including the costs or where the money for it would come from. That would have a lot to do with my position.”

House Speaker Jody Richards declined to comment on the proposal, saying he didn’t know enough about it.

State police have expressed similar questions about the proposal and exactly what Stumbo’s agency would do.

“I don’t think anybody’s had any contact with him to clarify what he wants,” KSP spokesman Phil Crumpton said.

Crumpton said Stumbo had discussed some proposals with state police Commissioner Pat Simpson, but that it was “way back when” and that no contact had been made since Stumbo’s election this month.

Crumpton said the commissioner was attempting to speak with Stumbo last week to clarify the role of the proposed agency.

Pamela Trautner, spokeswoman for the state Justice Cabinet, which oversees state police, said that no proposals have come to the cabinet and what officials know of the KBI is “pretty much what we’ve read in the newspapers.”

“It’s my understanding that we’ve not had any conversations with Attorney General-elect Stumbo,” she said.

Stumbo was on vacation this week and unavailable for comment.

Money problems

Kentucky’s budget situation has worsened since Stumbo first proposed the KBI.
Rep. Cherry said the budget fight in 2004 is “not going to be any easier this time around.”

He added, “If anything, it may be worse. We used many one-time pots of money to balance this budget. We raided the coffers, so to speak.”

Last month, Stumbo told Snitch that he wanted to fund the agency with a 15-cent-per-pack cigarette tax.

An increase in the cigarette tax has been proposed by many groups, most of which want to use the proceeds for a particular project, be it Medicaid or salary increases for public school teachers.

A state bureau of investigation would have to compete with numerous other interests for state dollars.

State Rep. Bob Damron of Nicholasville, also a vice-chair of the House Revenue and Appropriations Committee, said funding will be scarce for any new projects in the next session.

“We’ve got to look at taking care of what we’ve got before we expand into anything else,” he said.

Cherry agrees.

“We’re under pressure to increase education, particularly post-secondary,” he said. “I guess what I’m saying is that the budget problems we faced last year are going to be great, if not greater, this coming winter.”

Failing state funding, Stumbo told Snitch, “I’ve been in contact with (Republican) Congressman Hal Rogers, who happens to be a friend of mine; he just appropriated $13 million for his united effort in his congressional district, which is law enforcement, rehabilitation services, drug courts. He tells me that he’ll try to assist at the federal level to help us get funding for statewide initiatives.”

Concerns

“I think we’re pretty well known in this area for combating drugs, particularly meth,” Daviess County Sheriff Keith Cain said.

“More than anything at all, I need additional bodies, manpower. What I don’t need is another law enforcement entity that tells me that they’re on call, but because of other pressing issues in the Commonwealth, are not available to me.”

Cain had a bit of advice for the attorney general-elect.

“However they envision this entity, their success is going to be dependent on how well they work with local entities,” he said.

Absent a detailed proposal, Democratic state Rep. Jim Wayne of Louisville wondered if the agency was even necessary, given the resources currently available, especially those directly at the disposal of the attorney general.

“The attorney general has an army of investigators at his disposal. Why would you set up a new bureaucracy? The state police have an army of investigators. Local authorities have investigators. Even the state ethics commission has investigators. They’re being used on Gov. Patton right now.”

In addition, Wayne said that because the state police are under the executive branch, the attorney general would have no authority over the KBI.

Damron expressed concerns that current state police resources might be placed at risk if a new division were created.

“Pay raises for existing state police have to take a higher priority than any new spending,” he said. “I’m not going to be willing to sacrifice the Kentucky State Police for some new program.”

Wayne believes the attorney general’s office has powers and resources already in place to conduct the kinds of investigations Stumbo wants the KBI to handle, noting that the attorney general already has subpoena power at his discretion.

“If he wants to reorganize his office, that’s something he can do,” he said. “We don’t have to reinvent the wheel here. We just have to roll it.”

Snitch interviewed all three candidates for the position of Kentucky Attorney General, the top law enforcement position in the Commonwealth.

The interview was conducted last Sunday by staff writer Caleb O. Brown.

What courtroom experience do you have?

No one has more courtroom experience than me and Gatewood. I’ve got 10 years of prosecuting experience. When I was an assistant county attorney, we had 30 cases a day. Gatewood probably only works one or two cases a day when he’s in court. I’m the one with experience in this race.

Qualifications over Stumbo and Galbraith?

We’ve all been attorneys for about the same amount of time. Their time has been spent as defense attorneys. My job has been a prosecutor and as a district judge. As a judge I had to weigh the evidence. If a person was found guilty, I had to pass sentence in order to ensure compliance.

As a prosecutor, we had to investigate the case, apply the applicable law to it and present this evidence to a judge or a jury. We had to convince them that a person was guilty beyond a reasonable doubt. We also had to be a part of the sentencing process and we made sure that the sentence was complied with.
With my 14 years of experience as a judge or a prosecutor — which has been paid for by the taxpayers of Kentucky — that means after I’m sworn into office, I can be prosecuting in the courtrooms of Kentucky. My two opponents will either be in school learning how to be a prosecutor, or worse, they’ll be getting on-the-job training.

You have to have an outlook because you’re the chief law enforcement officer of the state, you’re the head of the law department for the state. You’re also head of the crime victims association for the state.

One of my opponents has exhibited his defense attorney mentality. Greg Stumbo wrote a letter on behalf of one of his former employees — Kent Downey — who was convicted on prostitution and gambling charges, of running those procedures out of his office. As the chief law enforcement officer of this state, you won’t see me writing a letter on behalf of someone who exploits women in that manner, asking a judge to set a lenient sentence. We need to be setting a standard. There will be plenty of people asking for leniency; that’s the defense attorney’s job. It’s the prosecution’s job to see that the proper sentence is imposed to get compliance and to show that this not a crime that is acceptable in the state.

Your opponents have made OxyContin and methamphetamine abuse problems priorities should they win.

Both of my opponents have a drug plan. I have a drug plan. Gatewood Galbraith proposes that we file a lawsuit similar to the tobacco lawsuit filed by the states. I think that’s a good step, but it’s not the only thing, it’s part of the process. I think he’s right because I think the pharmaceutical companies set out to do exactly what they did, and I don’t think their motives were pure.

But that will take two to seven years. And we have to depend on a jackpot jury to award that much to us. We can proceed with that while we go ahead with my plan.

Mr. Stumbo has a drug plan called the KBI. The problem with that is he wants a new bureaucracy that he will be the head of. He wants law enforcement officers under his direct control.

The problem is that we have state police who are retiring. They are our most seasoned officers. The money is there, but they’re not being replaced by even the newest recruits. We need more manpower on the streets so that we can attack this problem.

The other problem is funding. He wants to fund this with a new tax on cigarettes. He wants to add $1.50 to a carton of cigarettes. He says he wants to make pushers pay, but this is a tax on law-abiding people who are engaged in a legal activity. He wants to punish farmers who grow it, merchants who sell it and users who use it.

If you want to make pushers pay, you need to go after the assets of pushers, the distributors and the manufacturers. Let’s attack their property, both civil and real, and their bank accounts.

My plan is three parts. We’ve got to eradicate, educate and rehabilitate.
I propose we fund our law enforcement all the way down to the city and county levels. We go after the suppliers, distributors and manufacturers. We close them down.

When you have somebody who is more afraid of not getting their drug than getting put in jail or fined, then we’ve got a problem. We have to rehabilitate. We can go to the private sector; we can use faith-based options. We can increase our drug court participation.

The third thing is educate. We can’t afford to lose another generation of Kentuckians to drugs. I don’t care how many factories you have sitting in that community, if that labor force has lost its will to get up and go to work and perform their services for a Friday night paycheck, it’s not going to work. Those factories will have to close and go elsewhere.

In Kentucky, the average drug user spends about $60,000 a year to support their drug habit. Most people don’t make that. Once they’ve quit their job and sold their property, they’ve got to get money. What are they going to do? They turn to crime.

Now, capital cases go up, domestic violence goes up, people stop paying their child support. We have farmers in Western Kentucky who go out to get their anhydrous ammonia and find that it’s stolen because it’s an ingredient in methamphetamine.

I propose that we expand our DARE programs, and we’ve got to talk to young people about drug addiction.

Your pay was suspended twice as a district judge. Can you speak to that?

In Kentucky, any candidate for judicial office has to run under what is called the Judicial Canons of Ethics. There are many lawyers and judges who think those canons of ethics are too strong, too restrictive.

A similar canons of ethics, I believe, is in Minnesota. A judge brought an action saying that it was a restriction of his right of free speech. A judge upheld it. It’s now before the Supreme Court for review.

Mr. Stumbo, myself and Gatewood, if we were running under those canons of ethics, we would all have been suspended because we have all made comments that would not be permitted. All you can really say as a judicial candidate is that you’ll be fair and impartial.

In my first campaign for judge, I ran against an incumbent. My campaign committee did a poll in the four-county area. The results were that three of the four counties would vote for me. My committee ran an ad to that effect. After I defeated the incumbent judge and carried those three counties, a complaint was filed by someone.

The judicial commission decided that we hadn’t used a professional polling group. We admitted to that, that we had done it all in-house. They said that brought some sort of disrespect upon the judiciary. They suggested I take responsibility for this, since I was the candidate and I was responsible for everything my committee did. I agreed to that. It was a 10-day suspension of pay. I learned from it.

The other instance occurred when you set what was called an unreasonably high bond. Is that right?

No. What happened there was that my campaign committee ran an advertisement saying that I had been nominated for judge of the year. My brother, who was a practicing attorney in the community, made the nomination. They said that shouldn’t have happened. They said that my committee should not have made that nomination, even though my brother was qualified to make the nomination. Once again, they suggested a suspension of pay. The important thing to mention is that this was all pay. None of this was about judicial abilities.

You were suspended as an assistant county attorney.

That’s an interesting thing. Stewart Media Group, which is running Greg Stumbo’s media operations, filed an open records request with the Jefferson County Attorney’s office. Back came this letter — I know because I have a copy of it — which wasn’t signed at the bottom. It was just initialed at the top. I don’t remember having pay suspended. I don’t remember receiving this. My superiors at the time don’t remember this. This letter that they have wasn’t signed off on by myself, saying that I’ve seen it. It wasn’t signed off on by the county attorney at the time, Mike Conliffe.

The other interesting thing about that. Do you remember when the commonwealth attorney got his speeding ticket dismissed?

There were three county attorneys in that case. No one remembered doing it, but The Courier-Journal filed an open records request because they said they remembered one of those county attorneys having been suspended for the same activity. The report that came back to The Courier-Journal was, “We don’t keep records as far back as 1996.” But this letter was dated 1991. All of a sudden they don’t keep records back for Democratic prosecutors, but now they keep them back for Republicans?

One of the things I’d like to point out here. Ray Stewart and his media group, they’ve got to be some of the most unethical people in the media business. You remember back in the May primary where an advertisement was run in Eastern Kentucky and it was nicknamed the “naked PVA ad”?

Ray Stewart was the one who promoted that, produced it and put it on the air. Now Greg Stumbo has hired this individual to run his media. I think the people you employ and the people you put in your service speaks to what kind of public official you will be.

Snitch interviewed all three candidates for the position of Kentucky Attorney General, the top law enforcement position in the Commonwealth.

The interview was conducted last Thursday by staff writer Caleb O. Brown.

What makes you more qualified than Greg Stumbo and Jack Wood?

I’ve been a practicing defense attorney in the courtrooms every day for the past 26 years. I’m highly regarded for my courtroom success. I’m capable of putting cases together from the prosecutorial end, which is one of the job functions of the attorney general. Mostly, I’m more qualified than these two guys because I have no interest to which I am beholden. Being an independent cannot be overemphasized in this race.

We all should be able to handle ourselves in the courtroom. We all have to be licensed attorneys, so we have to meet the minimum standard there. Being independent of any special interests, any party politics, any partisanship, that’s what separates me from these other two guys. Right now is such a critical time in Kentucky’s history, where partisan politics has gridlocked our system and … stopped the delivery of vital services for which it’s set to function. Independence is what gives me quality over these other two guys.

You have no elective experience. You’ve always been an independent attorney. In terms of building a prosecutorial staff, what impact will that have?

I’ve already consulted with people on the transition that needs to occur once we win. Lots of experienced political, intelligent people have come forth and counseled with me on what it takes to put together a shadow team, placing your people with the key people in the past administration so that the baton can be handed off in an efficient manner. The attorney general’s office has 240 or 250 employees, 16 basic areas of service. I’m going into it with the idea that everybody up there is working to maximum efficiency and doing a good job. I know that they’re going to have an 8 percent to 10 percent budget reduction next year …. The delivery of services as they currently exist should be a top priority of whoever goes in.

The first plank of your platform deals with corruption, inside and outside of state government. You believe that as an independent, you are most suited to deal with abuses of both parties. What specific offices in state government will receive your office’s highest level of scrutiny?

(Chuckles). Right now Transportation looks like a pretty good candidate. I don’t think the investigation is going to be done there. I’m interested in any quid pro quo deals between folks with state contracts and the contributions they make to the politicians that they put in power. I think personal service contracts and the hiring of outside help is one of the main vehicles of corruption.

In Paul Patton’s first year, those contracts were $220 million or so. In his last year, it was over $850 million. That growth of $600 million a year in hiring outside help is the area where most of the payoffs and cronyism goes. No telling how many payoffs have been made that way.

There is a legislative oversight committee, but they don’t pull many contracts. I think the reason is that the Republicans don’t really want to eliminate corruption in Frankfort. I think that party wants to replace the Democrats at the trough to see how deep they can dig their snouts into it.

Corruption is what keeps this state bankrupt financially and morally. We’ve gone from a budget surplus down to a budget deficit. So much of that money goes to special projects. It’s not being used to pay the state’s bills. It’s the political payoffs that are the institutionalized corruption.

I’ll bring up a point here. Mr. Stumbo, during the KET debate, looked into the camera and said, I’ve been up there 24 years and I’ve never seen any corruption. I said, ‘Mr. Stumbo, what about BOPTROT, the Kent Downey affair, the Love Gov. and the Transportation Department? Don’t you think those things qualify as corruption?’ Then I got to thinking about it. You know, in his mind, maybe that doesn’t qualify as corruption. It’s more of a lifestyle to him. Maybe what’s corruption to some people may seem like business as usual to other people. Business as usual is what has brought this state to a very critical juncture.

The state budget will likely limit your abilities to prosecute crime. How will you deal with that?

We’re all going to have to face budget cuts. I’m going to ask the employees of the office to dig a little deeper and find a little more desire to do the best job that they can. We need to get a little more production out of the people we have.

Setting the persona of being honest and a hard worker myself I think is going to set well. I plan on being up there as early as necessary to get the job done and stay as late at night as necessary to get the job done. Nobody is going to outwork me. I’ll set that kind of tone and tenor of honesty.

Prioritization of the law enforcement dollar is one of the main functions of the attorney general. The attorney general is chairman of the prosecutorial advisory council. They take the state budget and the law enforcement section of that and they make sure the commonwealth attorneys’ offices are funded, the county attorneys’ offices are funded. They may have a little more money that they put toward multi-jurisdictional task forces or other special projects they may have.

We’re going to enforce all of the laws, but we’re going to put more money toward some than others. We’re going to focus on the methamphetamine scourge, the crack cocaine scourge, and we’re going to follow the tracks in the snow to where these pharmaceutical companies have been pushing these pills and make them come up with some money for other programs.

How will you achieve greater transparency in state government?

I’d like to meet regularly with other constitutional officers on a regular basis, either once a week or once a month. I don’t know if that’s ever been done. I’d like those discussions to be a matter of public record.

The attorney general is charged with enforcing the open meetings act. I believe that a strong policy of absolutely enforcing the open meetings law will set a good tone.

The attorney general’s opinion is taken very seriously. When interpreting state law, how do you differ from your opponents on matters of law?

I have my opinion about a lot of things. I don’t expect to express it inappropriately or in the wrong context when I occupy the office. When my office is asked to defend a law in the state of Kentucky, we’ll do so to the best of our ability.

However, my oath is to defend the Constitution of the United states and the constitution of the state of Kentucky. I have views on the constitution that I’m sure the other two people do not hold.

Mr. Stumbo wants to add a new layer of police, the Kentucky Bureau of Investigation, his own personal police force. He wants them to have overreaching jurisdiction over local police departments. He wants to fund it with a 13-cent-per-pack cigarette tax.

I, on the other hand, want to get the government off the backs of the people. I am a conservative. I believe, philosophically, in less taxes and smaller government.

My own personal view, if it is appropriate to express in an opinion as attorney general, I will express it based upon my own view of the constitution.

That being said, I believe people’s right of privacy is being violated in many quarters now. Not just from criminals, but from a large government. In your own home, you have rights to which the powers of police do not extend. That’s not my opinion, that’s the law of the state of Kentucky.

For instance, I believe that you have the right, in your home, to smoke marijuana. I don’t believe that violates the law. In 1909, the Kentucky legislature passed a law that said all alcohol in the state was illegal. You couldn’t possess alcohol anywhere in the state. In 1910, in Commonwealth vs. Campbell, and in 1915, in Commonwealth vs. Smith, the Kentucky Supreme Court said that the Kentucky constitution guaranteed you a right to privacy in your home to which the power of police does not extend.

That’s not some folklore with no impact. That’s the standing rule. It’s that rule that keeps the Kentucky State Police from kicking down the doors in 77 dry counties in Kentucky and hauling everyone’s ass to jail that possesses alcohol. My question is, if I have a substance that is demonstrably less harmful than alcohol, don’t I have the same constitutional right in my home? I get plenty of cases dismissed because prosecutors don’t want to challenge me on it.

If you would do so, how would you seek the death penalty as attorney general?

I’m for it. As a defense attorney, I’m very sensitive to the possibility of putting an innocent person to death. If that were a possibility, I’d look at the circumstances of the case four or five times if I had a say in it. There are some situations where the identity of the assailant is not in doubt, the severity of the crime is not in doubt. The people have a right to put a person to death. I think it’s a deterrent. There’s no doubt about that. That person, at least, isn’t going to kill anyone else.

Mandatory minimum sentencing requirements?

I’m against them. As often as I’ve been ruled against in the courtroom, I trust the judge. I trust the system that places the judge there with the discretion that they have. In the long run, having that elected individual pass sentence based on community standards and the expectations of the people around them, that’s the ultimate of being judged by your peers.

There’s too much demagoguery played with the war on crime and the war on drugs. I’m afraid the legislature can get carried away trying to show how tough they can be, and they could pass more draconian laws than exist now.

By Caleb O. Brown
Snitch Staff Writer

“The sign out front says these are supposed to be our twilight years,” says Vickie Taylor of her home, the J.O. Blanton House at Eighth Street and Muhammad Ali Boulevard. “The board and management of this place are making them our nightmare years.”

Taylor sits in her apartment talking with friends, now colleagues, in an effort to fix dozens of problems they claim plague their home. Some residents say safety has sharply declined, leading some to carry knives, icepicks and handguns when they venture downstairs to do laundry.

The residents gathered with Taylor serve on what they call the “Committee for Concerned Residents,” a group formed by the Resident Council at Blanton House. The group says the home’s board of directors has been unresponsive to claims of poor security and other problems on the premises.

Taylor says, “We told them this building was full of dope addicts, sex offenders and prostitutes.”

Lucille Hall, another resident, says she routinely sees drug addicts in the halls and “the security people can’t do anything.”

Ann Pruitt moved into Blanton House three years ago and said she felt it was a safe place for her to live. She says her son now routinely offers to bring her a pistol so she can protect herself.

“All our sons are saying they’ll bring us guns,” says Taylor.

Three floors up, Vivian Gibson says she moved into Blanton house Dec. 2, 1972, and she’s noticed a decline in her own feeling of safety only in the last three years.

“You’re afraid to go to the garbage room to drop off your garbage. Used to be no problem taking it down there at two or three in the morning. Not anymore.”

The risks are not lost on Carlos Lynes, who is the chairman of the Blanton House board of directors.

“They complain that people are coming in with drugs,” he says. “I’m sure it’s happening. It wouldn’t surprise me at all, but none of that has been substantiated. Without proof, we can’t do anything.”

Lynes says he doesn’t understand why residents are carrying firearms in the building.

“The place is secure,” he says.

“That’s his opinion, but he’s only there once a month,” says another Blanton House board member who refused to be named for this story. “The police got rid of some drug dealers and prostitutes, but when the police left, those people came back. I want to see the place safe for our residents. It’s their home.”

At least part of the fight between residents and the board of directors is over who provides security to the building. Just four months ago, Lynes says, the board moved to allow off-duty Louisville police officers serve as security guards on weekends. Lynes says the police presence was a response to residents who claimed they’d witnessed drug activity in the building. Since switching from off-duty cops to a private security firm - Commonwealth Security - Lynes says residents have gotten angry.

“All of this has happened since we got rid of the Louisville Police Department,” Lynes says. “Three years ago, we didn’t have security in the building. I don’t think the situation has changed that much in that time. The complaints about security usually come around the first of the month, when people get paid.”

One of those complaints came a year ago, when Lula Ross says she was attacked on Aug. 31.

She says the attacker kept his hands on her throat, repeating “Where’s the money?!” Ross says she fought off the attacker successfully.

Taylor says that attack and other threats serve as reason enough for a police presence in the building. Taylor says Louisville police serving as security in the building are just better at policing the building.

“They knew the players and the hustlers and the dealers and they knew how to stop them,” she says.

Taylor adds that Louisville police are armed and have the ability to arrest people, whereas a security officer for a private firm would have to call the police.

Last month, residents achieved mixed results when they approached the board of directors to deal with issues of security and sanitation in the building.

“We had about 25 people who came up. They voiced their concerns and I have a listing of the complaints. It just so happened that the man who manages the property was there, also. I received from him a letter as to what he has done as far as correcting many of the issues,” Taylor says.

Concerned Residents committee member Ann Pruit says it was more like 30 people, and that they followed up with letters to the board and to the recently hired property management firm, TESCO Properties. TESCO Managing Agent Larry Sisson could not be reached for comment at his office in Germantown, Tenn.

Lynes says he is waiting on proof from residents of drug activity, even though he admits that he’s sure there is some in the building.

“They complained that there was drug activity there,” says Lynes. “They complained about prostitution in the building. We asked them to sign an affidavit, and no one would sign an affidavit. If they know of someone who is pushing drugs or bringing drugs in, those residents can indicate that to management, but they have not done this.”

Pruitt and Taylor say no one has asked them to sign any affidavit about what they have witnessed.

By Caleb O. Brown
Snitch Staff Writer

5:29 left in the first quarter. The Vikings are up 7-zip against the rival Green Bay Packers. Veteran Packer fan Carol Krebs sits at Dutch’s Tavern wearing several strands of beads and a #4 Brett Favre jersey, her hands crossed in her lap.

“It’s not normally this quiet in here.”

She sighs and whispers, “It’s because we’re losing, that’s why.”

The stage at Dutch’s is bare, save the large pull-down screen telling viewers, whether they like it or not, “The NFC is on FOX.”

On the front row of Dutch’s makeshift sideline sits “Spike.”

Outside football season he’s known as Wayne Baxter. At Dutch’s he’s Spike, a fan permanently tagged with Packer tattoos on each arm, his wrists taped, his body draped in a #38 Packers jersey. Spike, not Wayne, rarely sits still in the green folding chair he brought from home as he shouts occasional obscenities at the screen.

Behind the bar sits the vaunted Grant-Lombardi trophy, a strange mix of a mannequin head, a cheesehead hat and Viking horns all painted up purple and green. Dutch’s has the honor of keeping the trophy, at least for now.

Down the block and across the street at Gerstle’s, Viking fans — the so-called Derby City Norsemen — can’t wait to deflower Green Bay’s newly renovated Lambeau Field with a severe thumping for the Packers.

Norseman Ken Rowan spent part of the first half yelling “Take that, Packer fan!” to one of the few Green Bay backers in Gerstle’s. As Eddie Johnson splits the uprights with a 46-yard field goal, making it 17-3 in favor of the Vikings, Rowan is grinning from ear to ear.

“I hate the Packers so much,” he chuckles, schadenfreude smeared across his face. “They won a bunch of championships when it didn’t matter, and now they think they’re gods.”

Behind Dutch’s, fans throw around a football, lamenting their poor Packers first-half turnovers.

“Brett’s throwin’ at things that don’t exist,” Spike says. “He’s havin’ a horrible day. No sooner do we get some passing and we get picked off.”

12:30 left in the third. Vikes fans bellow “Oooh!” as the Packer quarterback’s bad day continues. Favre is sacked.

Mike Summers, a Norseman, says he can smell the trophy making the one-block trek back to Gerstle’s but wants to wait a little longer before making any predictions.

“It’s in our grasp, but there’s still time left.”

1:30 left in the third. Packers drive for a touchdown, but the Vikings are still up by 16.

The green-and-yellow crowd at Dutch’s begins to chant, “Spike! Spike! Spike!”

He swaggers onto the stage, puts on his Packers helmet, pauses, then throws down a green and yellow plastic football, cueing the cheers of his fellow fans.
Spike and his wife, Candice, got married in Dutch’s Tavern. It was, Candice says, a “Packer-themed” wedding.

Vikes fail in a charge toward the end zone, but a field goal makes it 30-11.

Fairweather Packers fans begin to drift out the front door.

9:23 left in the fourth quarter. A desperate Packers fan screams, “Don’t huddle up, you don’t have all f***ing day!”

Elizabeth Naze, decked out in her Green Bay earrings, says — despite the score — being at Dutch’s is almost like being at Lambeau Field. She’s from Green Bay and has lived in Louisville for about six months.

“I’m less homesick when I’m here,” she says.

Even though she’s sensing the outcome will not be to her liking, Naze still finds Louisville’s Vikes fans to be “far more tame” than those up north.

“They get a little mean,” she says. “They’re actually worse than Raiders fans.”
Steve Johnson, a longtime Dutch’s Packers fan, now resigned to the outcome, says, “They’ll be here in three or four minutes.”

Two Green Bay touchdowns in the fourth quarter have changed Ken Rowan’s tune. The Norseman is sipping a beer and rhetorically preparing himself for the worst.

“This is way more intense than it should be,” Rowan says. “We outplayed them for three quarters. Now we suddenly have a game on our hands. If we lose this, it’s a fluke. It’s just a fluke.”

But the Vikings hang on, and as the clock ticks down to 30 seconds with Minnesota up by five, Norseman Dan McGowan blows the horn, beckoning his brethren to trek to Dutch’s to seize the prize.

Down and across Shelbyville Road, a purple throng chanting “Here we go, Vikings! Here we go!” makes its way into Dutch’s.

“Give it up!” yells a fan, as a bartender takes down the trophy and hands it over. The rowdy fans grab the symbol of supremacy and shuffle back to home base.

Sports broadcaster Dave Jennings, a Packers fan who spent the game with gloating Vikes fans, says the game isn’t really the important thing.

“Football’s back, that’s what matters. Win or lose, at least I’m not watching the World’s Strongest Man Competition on ESPN2.”

By Caleb O. Brown
Snitch Staff Writer

Late last month, Insight Communications e-mailed its broadband Internet customers to detail the role the company “is required to play in enforcing copyrights.”

Insight’s compliance with subpoenas issued by the Recording Industry Association of America (RIAA) and other copyright holders could end in federal lawsuits for customers who share and download music using peer-to-peer networks.

“We’re caught in the middle,” said Amanda Kahler, a call center manager for tech support at Insight’s Louisville offices.

Kahler said Insight has been placed in an “unfortunate” situation by the 1998 Digital Millenium Copyright Act (DMCA), a federal law meant to protect copyright owners.

In its e-mail notice, the company announced that it may be forced to comply with portions of the act that allow copyright holders to subpoena records relating to possible copyright infringement. The subpoenas themselves do not have to be issued by judges and they are not attached to any legal proceeding.

In addition to shutting down a customer’s access to the Internet, the company told users that it, like all other Internet Service Providers, “may also be required ... to disclose the infringing customers’ identity to the copyright holder.”

Slashdot.org user “diersing,” who asked other users if they’d received the e-mail, asked, “Am I the only one that sees a difference between a police agency with a warrant in hand asking who’s who and the damn ‘copyright holder’? Shouldn’t there be a burden of proof before my privacy is violated?”

Kahler said Insight is concerned about its customers’ privacy, adding, “We’re very particular about the subpoenas that we’ll consider valid. It has to meet certain criteria.”

Verizon, Boston College and the Massachusetts Institute of Technology have challenged the subpoenas for different reasons. U.S. Sen. Norm Coleman of Minnesota has written a letter to the RIAA hinting that it may be abusing its newfound subpoena power.

Boston College and MIT won a round in federal court this month when a judge ruled that the RIAA could not serve subpoenas aimed at students suspected of illegal file-sharing. The subpoenas were issued in Washington, D.C., but served in Massachusetts. The two colleges have refused to name the students.

Verizon has been less successful. The communications giant initially moved to quash a subpoena issued by the RIAA. The association had requested the identity of a Verizon customer who used the KaZaa filesharing service to share copyrighted material. Verizon lost the initial case, and was forced to turn over the name while it pursues an appeal.

Sen. Coleman is among critics who argue that the recording industry has been far too aggressive in its attempts to stop illegal file-sharing. Coleman, a former roadie for a rock band, has accused RIAA of being excessive in issuing subpoenas. He said he will hold hearings examining the industry’s authority in enforcing copyright.

On Monday, The Associated Press reported that the RIAA has altered its position, saying it will now sue only those users who have downloaded a “substantial amount” of music. The group declined to define “substantial.”

“Through the end of July, the recording industry says it served 1,075 subpoenas to ISPs demanding information about end users,” said Wendy Seltzer, a staff attorney at the Electronic Frontier Foundation. “That onslaught is continuing now in August.”

Seltzer says EFF’s main objection to the subpoenas — a provision of the 1998 copyright act — is that they are not issued by a judge and that they don’t have to be attached to any pending legal proceedingas other subpoenas must be.

Seltzer called the subpoenas “fishing expeditions. No judge ever sees them,” she said.

By Caleb O. Brown
Staff Writer (Snitch)

“My job has nothing to do with enforcement,” says Milt Galanos, the Drug Enforcement Administration’s newest special agent in Louisville. Galanos, hired just two weeks ago to focus solely on demand reduction for Kentucky, says his job is to “create bad public relations for drugs.”

Galanos says he’s far from being a federal version of a “D.A.R.E. cop,” visiting schools, and preaching the fire-and-brimstone dangers of illicit drugs. He says his efforts include brainstorming with local authorities to come up with education and other initiatives, especially in communities ravaged by methamphetamine and OxyContin abuse.

Galanos joined the DEA in 1988, working as a diversion investigator, checking manufacturers’ inventories to make sure controlled substances weren’t falling into the wrong hands. Now that he’s a special agent focused on cutting drug demand, Galanos says he’s making contacts.

“I’ve tried to contact all the prevention centers throughout the state. I’ve spoken with one in Paducah. I’m just trying to get myself known as a resource in the state.”

Galanos and his job are part of the DEA’s changing face under the Bush administration. His placement in Louisville was part of an initiative launched by former DEA Administrator Asa Hutchinson, who wanted demand reduction coordinators in each state. Hutchinson has since left for the Department of Homeland Security.

Tony King, Louisville DEA’s field office director, says Hutchinson breathed new life into demand-reduction efforts. King says that under the Clinton administration and DEA Administrator Tom Constantine, demand reduction simply “floated down toward the bottom on the list of priorities.”

And now that Hutchinson has left the agency, King and Galanos are left to wonder what newly sworn DEA chief Karen Tandy will bring to the table.

Tandy has pledged that she will focus primarily on dismantling large, international drug rings — attacking the supply of drugs — though she hasn’t said much about her domestic agenda.

“Different administrators have different focuses,” says King. “We had a program where agents worked in South America trying to disrupt cartels. Constantine’s focus was domestic enforcement. Hutchinson’s was demand reduction coupled with foreign and domestic enforcement. It ebbs and flows. Until they deny me money, which they haven’t so far, I’ll just wait and see. We’ll do the best with what they give us.”

For fiscal 2003, Congress appropriated $1.9 billion for the DEA.

The agency’s website indicates that Tandy, a former federal prosecutor, is very interested in enforcement. DEA’s website notes that when Tandy was head of the Organized Crime Drug Enforcement Task Force at the Department of Justice, one of her prosecutions “led to the landmark U.S. Supreme Court decision that attorneys’ fees are subject to forfeiture notwithstanding the Sixth Amendment right to counsel.”

Tandy, after her confirmation last week, indicated that she knows the criticism of DEA is that the agency has “lost focus” and that she’ll work to restore it.

King and Galanos won’t say if they think demand reduction will be a key part of Tandy’s focus.

King says one complicating factor is a recent federal performance audit of hundreds of agencies, including the DEA.

The review rated DEA as “results not demonstrated,” shorthand for “DEA is unable to demonstrate its progress in reducing the availability of illegal drugs in the U.S.” The report found that while DEA does have performance measures, “DEA managers are not held accountable for achieving results.”

The report gave DEA a rating of zero for accountability.

“How do you measure the influence you have on a kid?” King asks. “If Milt goes to a high school, they keep statistics on how many hours he spends doing presentations, but how do we know the overall impact? That’s the difficulty in demand reduction.”

Ultimately, King says, “Performance reviews like these mean more paperwork for people like me.”

By Caleb O. Brown
Staff Writer

Since his conviction and subsequent jail time for possession of a half-gram of psilocybin mushrooms, 21-year old Adam Jones decided he would get involved in the drug reform movement.

Jones had organized a rally/concert for a medical marijuana ballot initiative being promoted by two groups, Students for Sensible Drug Policy and the Montana chapter of NORML, the National Organization for the Reform of Marijuana Laws. He made arrangements with the Fraternal Order of Eagles Lodge in Billings, Mont., and arranged to have several bands play to help raise money.

Just a few hours before the event, according to John Masterson, Montana NORML’s director, a DEA agent approached the manager of the lodge with a copy of a new federal law in hand, stating that if the event were to take place as planned, agents would stay and see if any illegal drug use took place. If it did, the manager was told, not only would the event be shut down, the lodge itself could be held liable for a quarter-million-dollar civil fine.

After consulting the lodge’s lawyer, the event was canceled.

“It was alarming to me, due to the fact that there was no crime committed,” Masterson said. “There was no criminal behavior. But through a sort of intimidation tactic, the political speech inherent in a fund-raiser was quashed.”

The special agent in charge for the DEA told The Billings Gazette that the agent had acted of his own accord but also said he thought it was safe to say “the kind of audience attracted to NORML concerts are typically a marijuana-using crowd.”

That event sent up a warning flag in the drug reform community that this new law - popularly known as the RAVE Act - had claimed its first victim. For those opposed to the Drug War, the problem was that DEA’s threat was not hurled at an event planned “for the purpose of drug consumption,” as the law states would be required for prosecution, but one organized for the purpose of political speech: a fund-raiser for a state ballot initiative.

The RAVE Act’s provisions were never debated in Congress because the provision was tacked onto the Amber Alert bill in conference committee. That bill, designed to create a nationwide system to help recover missing children, was signed that bill into law with great fanfare in April by President Bush. The RAVE Act - or its more contemporary name, the Illicit Drug Anti-Proliferation Act of 2003 - was sort of a legislative stowaway.

Its defenders say it’s meant to go after “irresponsible rave promoters” and “return the rave scene to what it was supposed to be.”

Critics charge it will give federal authorities “the tools to discriminate” against activity - especially political activism and rallies - they don’t like.

Some members of Congress were unaware of precisely what the provision was supposed to do. When Snitch asked Sen. Mitch McConnell (R-Ky.) if he’d voted for the Amber Alert bill, he responded, “Of course,” but then said he didn’t know enough about the RAVE Act provisions to discuss them in depth.

Precursors

The RAVE Act is a bit of a misnomer. When it was introduced in 2002 under that acronym (that’s Reducing American’s Vulnerability to Ecstasy), it quickly gained a reputation in the rave community as something that could send raves back into the unventilated, unsafe warehouses that first brought the dance parties to prominence.

According to bill sponsor Sen. Joe Biden (D-Del.), the act was created in response to four cases brought by federal prosecutors using the “crackhouse statute” to charge promoters and owners of music venues with providing their facilities for the purpose of drug consumption.

That law allowed prosecutors to go after the owners of crackhouses if they knew about and benefited from the drug trade, even though they may not have handled the drugs themselves. Biden said that the law’s limitations made it difficult to get convictions, and he cited the cases in Boise, Idaho, Little Rock, Ark., New Orleans and Panama City, Fla., saying prosecutors had scored two victories, a loss and a draw.

As a result of the RAVE Act, the crackhouse statute no longer refers only to landlords who “open or maintain any place” for the purpose of drug consumption, but also those who “open, lease, rent, use, or maintain any place, whether permanently or temporarily,” for the purpose of drug consumption.

Critics say there’s a world of difference between those two phrases and that the new language will allow prosecutors to go after raves, which are, by definition, temporary events that may not exist a day later.

But the law moves further from the original statute, stating that owners, renters, managers and others no longer have to profit from drug activity in order to face charges. The specific language states that they must (take a deep breath) “manage or control any place, whether permanently or temporarily, either as an owner, lessee, agent, employee, occupant, or mortgagee, and knowingly and intentionally rent, lease, profit from, or make available for use, with or without compensation, the place for the purpose of unlawfully manufacturing, storing, distributing, or using a controlled substance.” Whew.

Critics say that language could - depending on interpretation - include people who were not engaged in the drug trade at all.

The RAVE Act also holds those promoters and owners liable in civil court for violations, something that essentially lowers to burden of proof in order to get a conviction. Those found liable in civil court would not go to jail, but could be put out of business and bankrupted.

The ACLU's Graham Boyd testified at what he said was the sole hearing on the bill in 2002. He said he was the only witness speaking in opposition. He said the three supporting witnesses “basically didn’t talk about the bill at all. They just talked about how ecstasy was a bad, dangerous drug.”

Boyd worked for the ACLU on the New Orleans case, the outcome of which Biden termed a “draw” for federal prosecutors.

Promoters held a rave at the State Palace Theater in New Orleans. According to Boyd, they were aware of the drug use and took efforts to stop it but weren’t successful. They were then indicted under the crackhouse statute.

The Electronic Music Defense and Education Fund said on its website that the New Orleans case was the first application of the crackhouse statute to a concert venue and “the first case to name pacifiers and glow sticks as drug paraphernalia.”

But prosecutors, according to Boyd, made few claims about how the venue owners were involved in the drug trade.

“Prosecutors admitted that the owners were not involved in drug dealing and were not benefiting from the drug dealing,” he said. “It wasn’t a conspiracy that they were somehow engaged in.”

The case was a draw for prosecutors, according to Boyd, because they were unable to get one of the promoters to cop a plea.

“They had to settle for getting the corporation to pay a fine and getting the venue to ban glow sticks and pacifiers and so forth,” he said. “In the end, a federal court even enjoined that, saying it was a violation of the rights of audience members.”

The DEA, Biden and others point to the Little Rock and Boise cases as reasons for expanding the crackhouse statute. But Boyd said those cases featured defendants who were not only accused of knowing about drug use, but also with drug conspiracies.

“These were people who allegedly were hiring drug dealers to sell drugs at their events and taking part of the profits,” he said.

There is a huge difference between attempting to stop drug use and not fully succeeding and actively engaging in the drug trade as you run a music event, Boyd said.

“If you’re a drug dealer, the fact that you’re running a concert is no defense. That’s not what the First Amendment is about. If you’re a drug dealer, you’re a drug dealer.”

Civil fights

Biden said this year, “The purpose of my legislation is not to prosecute legitimate law-abiding managers of stadiums, arenas, performing arts centers, licensed beverage facilities and other venues because of incidental drug use.”

Instead, he insisted, the act was aimed at “rogue promoters who not only know that there is drug use at their event but also hold the event for the purpose of illegal drug use or distribution. That is quite a high bar.”

Not high enough for the critics, who claim the civil penalties imposed by the law lower the standard of evidence enough to threaten many legitimate businesses.

Sen. Patrick Leahy (D-Vt.) dropped his sponsorship of the bill, saying, “The provision allowing civil suits dramatically increases the potential liability of business owners. … We have been told that even conscientious promoters may think twice before holding large concerts or other events where some drug use may be inevitable despite their best efforts.”

Bill Piper with the Drug Policy Alliance says many of the provisions that business owners have taken to prevent drug-related fatalities at their events may fall by the wayside.

“Business owners are simply going to say, ‘No more bottled water and no more paramedics on scene,’” he said. “Having those things on hand will be used against a club owner in a court of law.”

Piper added that even what would otherwise qualify as a responsible business practice might, under the RAVE Act, qualify as evidence of knowledge of drug activity.

“The threat isn’t just people on drugs like ecstasy, the threat is to all customers, even those simply dancing for hours at a time who might need a medic or bottled water.”

And Piper claimed that businesses, fearful of federal prosecution, might simply get out of the business of promoting music that may tend to attract drug users. He said that could be dangerous for those who will go to raves anyway.

“We’re just getting to the point where raves are mainstream, where it can be safe and regulated,” he said. “If a nightclub is too afraid to hold an all-night dance party for fear of prosecution, the demand for these types of events isn’t going to go away. Promoters will just hold them elsewhere. No security guards, no running water and no ambulance on call. That’s a recipe for disaster even if there are no drugs involved.”

Balderdash, says Howard Simon with the Partnership for a Drug-Free America.

He said the anti-drug law will “get the bad apples out of the way - promoters who welcome drug use at their venues.”

He said concerns that legitimate businesses will be shut down are overblown.

“The crackhouse statute hasn’t put landlords out of business,” he said. “People who have welcomed drug use to the scene have.”

Simon said the critics of the drug laws continually claim that they want “common sense applied” to the drug problem. He said they have little faith that laws, when passed, will be applied with discretion.

“If we make the assumption that the law will be applied with common sense and discretion, I don’t think responsible club owners have anything to worry about.”

Testing the waters

Opponents of the RAVE Act seem to universally admit that they don’t know how the law may be applied, but they say they’ll be watching federal prosecutors closely.

Masterson of Montana’s NORML says his group and the Fraternal Order of Eagles Lodge have been in contact with attorneys from various civil rights groups and said they’ll soon seek a federal injunction to stop enforcement of the law until its constitutionality is addressed.

“Not every rave will be targeted by this,” said Boyd, “but prosecutors in some parts of the country may go after business people who are putting on an event that they don’t like, who are doing something that is not itself illegal, but where drug use is going to go on.”

Boyd said the ACLU fought at length with the sponsors of the bill to clarify language that may lead prosecutors - and judges - to assume that if an owner knows of drug use at his venue, that would be enough for a conviction. He said the bill sponsors refused to make that change.

The key argument surrounding this expansion of the crackhouse law, according to Boyd, is that the law is open-ended enough to criminalize a great deal of activity if knowledge is the standard that is used.

“I can’t imagine that college deans will get prosecuted for knowing about drug use in a dormitory, but it gives the police and prosecutors the power to basically decide who they don’t like, who they think is in need of being shut down. And they can selectively do that. It gives them the tools to discriminate.”

This is our concern, Dude: Will the AMF Rose Bowl have sufficient capacity to accommodate the hundreds of fans of the The Big Lebowski expected to arrive on July 19 for the Second Annual Big Lebowski What Have You Fest?

Scott Shuffitt and Will Russell — the dudes putting on the shindig — certainly hope so.

Last year, when they put together a festival to honor and celebrate the Coen brothers’ film, they hoped only to break even. Shuffitt said, “Even on the night of the event, I thought it possible that as few as 35 people would show up.”

Shuffitt may simply be — to use the parlance of our times — modest. Please consider that last year’s event was called the First Annual What Have You Fest.

They’d rented Fellowship Lanes on Seventh Street Road for an evening of bowling, made some T-shirts, bought a few bowling trophies and put up a website. But drifting in with the tumbling tumbleweeds were Lebowski fans from, not just Louisville, but also Arizona and New York. In all, around 150 fans showed up to celebrate.

But first, you gotta understand something about “the Dude.” For those who aren’t “Achievers” (the preferred nomenclature for fans of the film), The Big Lebowski was the 1998 film from Joel and Ethan Coen that followed the brothers’ previous success with Fargo. Lebowski features a befuddled Jeff Bridges as the Dude, an unemployed, laid-back pot smoker in Los Angeles who finds himself trying to solve a kidnapping after he’s mistaken for a millionaire by the same name. The Dude drinks white Russians. He loves bowling. Strikes and gutters. Ups and downs. The End.

It was hardly a blockbuster, but the movie has its hardcore fans quoting lines from the obscenity-laden script.

And it’s those obscenities — and the need for white Russians — that made Russell and Shuffitt decided that Fellowship Lanes, a bowling alley that allows neither alcohol nor cursing, might not be the best place for the second year’s festivities.

This year, dudes Shuffitt and Russell have set up a bigger and better website, Lebowskifest.com, and have a much more extensive list of activities for the Achievers.

The events planned for the weekend get an extra dose of credibility because the Dude himself will preside for the entire weekend. Not Jeff Bridges, mind you, but the actual Dude, Jeff Dowd. He’s a friend of the Coen brothers and the admitted inspiration for the film’s protagonist. He’s currently promoting a book about being “the Dude” after the film’s release.

The weekend starts with a party at The Back Door in Mid-City Mall at 10 p.m. July 18. Dudes Shuffitt and Russell promise a special on white Russians.

Then it’s only a few yards to a midnight screening of The Big Lebowski at Baxter Avenue Theatres. Costumed Achievers will act out portions of the film as it plays. Shuffitt and Russell don’t shy away from the obvious comparisons to midnight screenings, which often feature the same level of interactivity.

“Eat your heart out, Rocky Horror, there’s a new cult film on the rise,” the dudes’ website intones.

After the Achievers get some rest from the midnight screening, it’s on to the Holiday Inn on Bardstown Road and the AMF Rose Bowl (next door) for festivities running from noon Saturday until the next day. For those who are Shomer Shabbas and won’t be able to roll on Saturday, there is Sunday afternoon’s closing “Lebowski Fest recover brunch with the Dude” at Lynn’s Paradise Café.

“It’s really a totally Highlands event,” said Russell.

But the growth of the Lebowski Fest from last year is what has really surprised Russell and Shuffitt. The website is now averaging about 2,000 unique visitors every day. The Fest has been featured in Spin magazine and was a “Yahoo! Daily Wire” pick. The Dudes are even selling tickets ahead of time to make sure no Achiever is left out.

So if you find yourself at the AMF Rose Bowl on July 19, wondering aloud about the purple jumpsuits, white Russians and oat sodas, you may hear a passerby respond, “Obviously, you’re not a golfer.” If you don’t get it, you’re out of your element.

If you’re not a Lebowski fan, best just bowl elsewhere that night, lest you arrive with no frame of reference. As for ticket sales, Russell is cautiously optimistic about whether any will be left by the time the festival rolls around.

“Well, Dude, we just don’t know,” he said.

By Caleb O. Brown
Snitch Staff Writer

“Hermione dies, doesn’t she?” she asked.

I had just told a friend of mine Saturday morning how I’d been waiting in line at midnight with the rest of the mad throng trying to get my hands on the latest installment of J.K. Rowling’s money machine: Harry Potter and the Order of the Phoenix.

So taken aback by the thought of having a three-year wait for the book ruined by such a flippant comment, I left without a word, incensed and a bit surprised at my own reaction.

But such is the appeal of Rowling’s simple story. When the fourth book in the series — Harry Potter and the Goblet of Fire — had been properly digested, readers were left breathless.

The now-familiar themes are of a boy coming of age struggling with the burden of fame, the judgments of his peers and elders and a ravenous media obsessed with his every action. Sounds vaguely like the obsession surrounding Rowling herself as she struggled to write Order of the Phoenix while managing to play a role in the production of film versions of the first two books, get married, have a child, deal with persistent rumors of writer’s block, rewrites due to 9/11 and a bevy of other rumors relating somehow to her perceived inability to deliver another structurally tight, passionate story.

Of course, the fact that Rowling has recently become the richest woman in England probably helped her situation somewhat.

Goblet of Fire was a great read, but ended as a downer. Harry had just witnessed the worst possible turn of events. Dumbledore, headmaster of Hogwarts, solemnly gave students the news before shipping them home for the summer. The End.

Easily the least formulaic of the series, Goblet of Fire made me realize that it indeed was possible Rowling plotted the course of her seven-book series with a rock-steady hand, merchandising, movies and product tie-ins be damned.

While Order of the Phoenix does little to resolve issues raised in Goblet of Fire — Rowling does have two more books to write — it shifts gears considerably as Harry finally begins to act like a normal teen-ager.

Harry must question much more about himself and his place in the world than ever before. He takes on an almost Holden Caulfield persona, a cynical self-absorbed teen-ager. Harry becomes uncharacteristically brazen and angry with his closest friends. His friends, also uncharacteristically, suffer Harry’s bursts of verbal abuse with relative kindness. And for a good portion of the book, I wondered if that would be Ron and Hermione’s only role: Sit back and suffer Harry’s angry jeremiads.

Thankfully, the book does fall back into Rowling’s pattern of making the story focus on the three: Harry, Ron and Hermione and their secretive battles with authority.

Authority, in Order of the Phoenix, takes a new name: Dolores Umbridge. A character almost worthy of Atlas Shrugged, she worms her way into Hogwarts, seizing the Defense Against the Dark Arts teaching position. Then, she simply seizes as much authority as she can over every aspect of the school, to the dismay of students and teaching staff. She does it all with the assistance of the compromised, corrupted Ministry of Magic.

Umbridge’s solution to virtually every problem in Hogwarts is greater central authority. Namely, hers. And never one to let a Latin name be meaningless, Rowling uses the woman’s name as another clever indicator. Rough English translation for Dolores: pain, cause of sorrow.

On her first day teaching Defense Against the Dark Arts (no practical self-defense allowed, mind you), she’s quizzed by Harry about what use a book of theory will be when wizards must actually defend themselves against dark magic.

Umbridge responds softly, “This is school, Mr. Potter, not the real world.”

Umbridge serves as the wedge that begins to divide the wizarding world into two camps: those who are willing to fight to live free and peacefully, and those who simply want to maintain their institutional authority at all costs, even if it means clamping down on the right of self-defense and the press, keeping the wizarding world in the dark about a terrible, looming danger.

The death of a “major character” seems tacked on and unnecessary. What ends up being the thing that has protected Harry on Privet Drive all these long years also seems an afterthought. And Rowling’s incredible knack for misdirecting the reader, keeping a dozen or more balls in the air and still driving different stories forward is a bit off in this installment.

Despite its minor faults, Order of the Phoenix does not disappoint. The story is well-crafted and introduces characters with great potential. We’ll have to wait again to discover if Rowling’s magical juggling routine can dazzle for two more acts.

By Caleb O. Brown
Staff Writer (Snitch)

The votes are in. Family court is on its way to all 120 Kentucky counties as part of a constitutional amendment passed in November. Proponents say the new system will ease many problems families face when they are forced to bring their issues — child delinquency, divorce, custody, child support and emergency protective orders — to a courtroom.

But for a few critics, the votes mean nothing. What they want — still — is a convincing argument for family court and demonstrable proof that the state’s nine pilot projects have been effective. They claim no such argument has been made and no solid evidence of success has been offered.

“One Family, One Judge, One Court” is the oft-used slogan of family court proponents. They say the court provides a cohesive set of services, reducing the time families must spend litigating and therefore their legal costs. The slogan itself refers to the economies that could be reaped by litigants who would no longer slog through innumerable days in a regular circuit court, district court or both. Supporters claim the evidence in favor of the court is readily available and largely self-evident to those inside the system. The overwhelming vote in favor of a statewide, unified family court system is clear evidence that voters want family court in their lives, proponents say.

Ann Swango, director of Kentucky’s chapter of the Children’s Rights Council (CRC), begs to differ.

There was plenty wrong with Kentucky’s family court system even before November’s amendment settled into the state constitution, she said. But just five years ago, Swango was singing a different tune.

“When I first heard of family court, I was all for it,” she said. She’s since become more cautious, but says she still likes the idea if “things are done right.” She doesn’t think they have been.

CRC opposed the family court amendment, chiefly because of concerns over the anticipated costs of a statewide family court system. Swango claims the evidence, for or against the effectiveness of family courts, never materialized. Due process rights of families, she says, get ignored. She argues litigants could be spending more cash than necessary to get through the system, and she takes particular issue with Kentucky’s chief justice, Joseph Lambert, “politicking” for passage of the amendment in 2002.

After several phone calls to his office, Lambert, according to his secretary in Frankfort, was “not interested in being interviewed” by Snitch.

Many large interest groups favored the amendment’s passage, and, in an interview with The Lane Report last fall, Lambert acknowledged that he was pushing the amendment. He said he was “traveling a lot … making a lot of speeches and appearances of one kind or another on behalf of the family court amendment.” He said that groups like, “KEA, the Kentucky Farm Bureau, the Burley Tobacco Growers Cooperative Association and the Kentucky Rural Electric Cooperatives” all backed the amendment.

Swango pointed out that none of those groups is family-centered. In addition to CRC, Lexington’s Family Foundation and a few other family-focused groups opposed last year’s amendment.

‘An Identified Need’

Family court was created in Kentucky in response to “an identified need,” according to Carla Kreitman, the director of Kentucky’s family court division. Kreitman joined the Jefferson County family court pilot project in 1991, shortly after the new court began hearing cases. She’s worked in the system ever since, taking on an increasingly administrative role.

The identified need, according to Kreitman, was largely the result of a judicial article in 1974 that shook up the various courts, putting them into four basic layers: circuit, district, appeals and the Supreme Court.

“It revamped the whole court system,” she said. “Prior to that there were all kinds of different courts. There were traffic courts and misdemeanor courts and chancery courts.”

Though the judicial article simplified much of the court system, family issues were separated into different courts, Kreitman said.

“Child abuse or neglect, paternity cases, domestic violence cases were in the purview of district court,” she said. “Divorces, adoptions, termination of parental rights were in circuit court.”

This led to a feasibility task force and a study on caseloads in the courts to see if, as Kreitman put it, “families are coming into the justice system through different doors” for different types of cases, most of which she said could be handled by a single entity, a single judge. That open question led Kentucky Chief Justice Robert Stephens to create six family court judgeships in Jefferson County, all volunteer positions, for Kentucky’s first-ever family court pilot project. It started in 1991. Many more would follow within the decade.

But Swango says the due process rights of individuals in that pilot project were ignored.

“You don’t just open up a test program and float all these people through,” she said. “Some people have said the whole thing was unconstitutional from the very beginning because people did not have the option” to use a traditional court.

Swango admitted, however, that the main constitutional challenge to Jefferson County’s pilot project was rejected early on by the courts.

Spreading the word

In 1998, Gov. Paul Patton signed House Bill 544, which brought family court pilot projects to eight new sites throughout the commonwealth. A ninth project was authorized by the General Assembly. Three courts launched within the year, and six more began in 1999.

How those family courts have functioned concerns George Thornhill. He sat on the original Family Court Feasibility Task Force, which made final recommendations to the General Assembly on how family courts should be adopted and the values that should be upheld.

“I was supportive of family court at the time, but then they disregarded our recommendations,” he said.

Thornhill said that when he was on the task force, one of his chief concerns was the high legal cost of divorce to families. He said the problem was the Domestic Relations Commissioner, a quasi-judicial position in which someone sat in judgment and then presented “findings” to a judge along with a recommendation.

Domestic relations commissioners have been eliminated by statute, but Thornhill says they’re just using a different name.

“Now they’re going to be mediators, not commissioners,” he said.

Kreitman admits that the Jefferson County pilot project used domestic relations commissioners for some time, but only because “they didn’t have enough volunteer judges to hear the caseload,” and so cases were divvied up between traditional courts and family court.

“The family court only heard half of the divorce cases,” she said. “We don’t want that barrier for the citizens of the commonwealth before they go to a judge. It’s been a constant philosophy to get rid of DRCs (domestic relations commissioners). They continued to use them in the pilot projects, but the DRCs only heard things that needed to be cleared up quickly, temporary motions. It was the desire to get rid of them.”

But are mediators, as Thornhill claims, merely domestic relations commissioners in disguise?

Kreitman said they’re completely different.

“Mediation permits the parties to play a role in the decision-making, separate from the role of a domestic relations commissioner,” she said. “The commissioner was a quasi-judge. The mediator allows the parties to come up with their own conclusions and then that is submitted to the judge.”

The cost of mediation, Kreitman contends, is typically far less than would occur in a different court.

“Every mediation program that exists in family court has some kind of sliding scale,” she said. “The cost is based on the litigant’s ability to pay. Some mediations are free. Parties are required to mediate, but you don’t have to pay a mediator. You can see your priest for mediation.”

For example, Kreitman said, Christian County’s family court uses staff members for mediation, which is free to litigants.

Swango claims that a lack of local rules to govern the court processes in many of the pilot projects keeps litigants in the dark as to their rights, and she charged that there is a veil of secrecy over the lack of rules.

Kreitman said the statute did mandate that local rules be produced, but said there was no timetable established to do so. Further, she said, in the absence of such rules, the rules of civil procedure govern. Due process, Kreitman said, was at all times preserved.

Measuring success

“There is no question that family courts have been successful,” wrote Chief Justice Lambert in Kentucky Living in early 2002, but critics dispute that claim. Data gathered by Kentucky’s Administrative Office of the Courts haven’t offered a definitive answer.

Both critics and defenders of family court agree that little public research has been conducted on Kentucky’s family courts, which aggravates Swango. She has repeatedly requested “social proof” of the system’s success but says she’s received no evidence from the Administrative Office of the Courts on whether litigants prefer family court to circuit and district courts.

Kreitman said it’s difficult, if not impossible, to do long-term studies on projects that have been in operation for such a short time.

She cited two studies that she said bolstered many of the claims made by family court supporters. Chief among those claims is that families like the family court system when they’re exposed to it. The first study was done by the University of Kentucky and another produced by the Administrative Office of the Courts with a grant from the State Justice Institute, Kreitman said. The second work she co-authored.

The first piece of evidence — provided to Snitch by the Family Court Administrator’s office in Jefferson County — is, in fact, not a study. Called “Family Court Development Project Final Report,” it gathered information on Jefferson County’s pilot family court project in 1993, two years after it began.

The report contains plenty of survey data gathered from families, attorneys, judges and the public.

What the development project’s report does not contain is information on authorship, methodology or the relative independence of those unnamed authors. No names are mentioned in the report at all. The report’s introduction also notes that the Family Court Development Project “provided assistance to the Jefferson Family Court in implementing mediation” in some contested cases.

The report gathered information on litigants’ feelings before and after experiences in family court. Again, no information was presented on how those interviewees were selected. And the report used a sample size of 89 in order to garner litigants’ sentiment about the Jefferson County system. Seventy percent of those polled were women.

The portion of the report that was collected by the University of Kentucky was part of the 1993 Kentucky Spring Poll. The Family Court Development Project wrote the questions asked in the poll. That portion of the report was meant to gauge Kentuckians’ feelings about family court as a concept.

Those polled were overwhelmingly in favor of the idea, but most of them had no previous knowledge of the family court operating in Louisville.

The second piece of evidence, also provided to Snitch, was a study titled “Rural Family Courts in Kentucky: Lessons Learned.” It was produced with grant money from the State Justice Institute.

Kreitman, a co-author, seemed surprised to learn that the study involved no actual litigants, either as interviewees or members of focus groups. Interviewees, the study said, “targeted instrumental leaders in a home county, leaders defined as those who contributed to the creation of a family court in their respective community.” Focus groups consisted largely of family court staff.

Though the study seemed to be meticulous in its examination of responses from those community leaders and family court staff regarding implementation of the system, the study’s concluding analysis stated, “Focus group participation was restricted to community leaders, family court staff and social work professionals. By necessity, others, i.e., litigants, clerk personnel and law enforcement officials, were excluded from focus group participation.”

Kreitman says work continues by the Administrative Office of the Courts to “quantify successes” of family court.

“We can use CourtNet (a computer system for maintaining court records) to dig up a number of statistics,” she said. “We’re having to look at process rather than outcome because we don’t have enough data to determine long-term successes. We are working on developing those tools. It’s not impossible to gauge those measurable outcomes.”

The amendment

A pamphlet promoting passage of the amendment last year read, “Family Courts have a ‘project’ status, which place them at risk for constitutional challenge.” The pamphlet was produced under the auspices of the Administrative Office of the Courts and included a brief endorsement of the measure by Lambert.

Passage of the amendment, the pamphlet argued, would allow family courts “to continue to operate successfully without the possibility of constitutional challenges.”

Kreitman agreed that the possibility of constitutional challenge was a driving force in getting an amendment passed. She said the main constitutional challenge to the family court pilot projects had been rejected by the courts, but the ruling also said, according to Kreitman, “must, at some point, become permanent.”

Thus, for the pilot projects to continue to function, successfully or otherwise, an amendment was needed.

The measure sailed to victory in November 2002 with almost 76 percent of the vote.

The cost

The cost of expanding family courts to the entire commonwealth presents another point of contention between proponents and detractors.

A family court progress report presented by Kreitman in March of 2001 laid out anticipated costs for a new family court, assuming that it would serve only one county circuit. The estimate assumed that such a court would launch after July 1, 2001. Total personnel, operating and capital outlay came to $680,700 a year for each one-circuit family court. Of that, the total recurring annual expense was $537,700.

It’s that kind of potential cost for a single county expenditure that worries people like Sonny Landham, an independent gubernatorial candidate who views the spending as little more than “a payoff to laywers and hangers-on.”

Said Landham, “The report stated that it would cost about half million dollars to maintain each court each year. It’ll cost $60 million a year to the state to maintain these courts.”

Landham did his reckoning on one family court for each of the state’s 120 counties, but in fact there will be far fewer courts, because many judicial circuits comprise two or more counties.

Kreitman says the projections in her report have been misrepresented.

“That was an estimate of what we thought it would cost” to set up a new court, she said. “What we’ve found is that it’s actually less costly.”

She said little of that $537,700 annual cost constitutes new spending and added that many of the costs for the new family court systems — which will be landing with greater regularity across the state in the near future — won’t exist uniformly.

As pilot projects have been instituted, Kreitman said, “We found that we didn’t need all of those things. We were able to use a number of existing resources.”

Many of the judgeships, for example, will be justified soley through larger caseloads. Kreitman admitted, however, that family courts do result in additional costs.

“What makes family court different from a circuit court judgeship is the social worker and the court administrator. Those are the only consistently new costs.”

The pace at which family courts will launch depends on the state budget. New family courts will not begin without the spending authorization of the General Assembly and future Kentucky governors.

The Administrative Office of the Courts reports that dozens more counties will be served by family court by the end of this year.

By Caleb O. Brown
Staff Writer (Snitch)

Their powers are enormous, wielded in almost total secrecy. They can subpoena you and force you to give sworn statements about whatever they please. They are random civilians brought together to examine evidence, conduct investigations and issue indictments when appropriate.

They are grand juries.

The protests over the shooting of James Taylor by Louisville Police have been, in part, over the Jefferson County grand jury’s decision not to indict. Taylor was handcuffed behind his back when he was shot by Detective Mike O’Neil.

Part of the difficulty in quelling that unrest has been the fact that few will ever know what brought about the grand jury’s decision. The jurors are sworn to secrecy about what they heard, how they voted and what they feel were the critical factors in their decision.

The element of secrecy, at least in this case, troubles Commonwealth Attorney David Stengel, who tried to get the entire grand jury proceedings released so the community would know what was brought before the grand jury, what questions were asked and how they were answered.

To say the least, that kind of request doesn’t come along very often. Judge Geoffrey Morris denied the commonwealth’s motion and stated simply in his ruling that grand jury proceedings “permit charges to be brought without substantive evidence,” charges that the accused could not readily rebut.

His ruling said the limitations of the grand jury system “are part and parcel of why the United States Supreme Court and the lower courts of this nation have shrouded the grand jury in confidentiality.”

But the grand jury system, its secrecy, its powers and how grand juries are allowed to function are matters of debate. And reformers have a few ideas about how to fix it.

Before the revolution

The existence of grand juries and their secrecy is laid out in the Fifth Amendment to the Bill of Rights, but the institution dates back – at least in this country - to Colonial America.

England used “assistants” in the colonies to make laws, accuse suspects and then decide guilt or innocence. Sensing the inherent problems in such an arrangement, colonists convened a grand jury and charged some of the assistants with crimes.

In the years leading up to the American revolution, three consecutive grand juries refused to indict newspaperman John Peter Zenger after he was accused of seditious libel for criticizing the royal authorities for doing away with jury trials.

Following the revolution and the ratification of the first 10 amendments to the Constitution – the Bill of Rights – grand jury secrecy was meant to protect jurors from undue influences, threats of revenge for an unfavorable decision chief among them.

Big power, few rules

“They can do just about anything they want,” said Stengel. He said Kentucky’s grand juries are rarely investigative bodies, usually only indicting on possible crimes that the prosecutor brings before them.

But “anything they want” covers a lot of ground.

Grand juries have wide latitude to investigate any wrongdoing, official or otherwise, within their venue. Kentucky Practice, Criminal Practice and Procedure (co-written by University of Louisville law professor Les Abramson) states “the grand jury may initiate investigations on its own initiative, based either upon the personal knowledge of any of its members or upon information furnished by any citizen.” Kentucky’s rules of criminal procedure state that grand juries can ask the Commonwealth Attorney to leave while jurors question witnesses. The appearance of those witnesses, the rules state, “may be coerced as in other judicial proceedings.”

Defendants can request that a grand jury hear evidence, but jurors don’t have to agree to hear it.

Nothing we hear leaves this room

Police dramas rarely show the grand jury. It’s hardly Twelve Angry Men. Grand juries don’t pronounce judgment of guilt or innocence, they merely judge whether there is enough information to send someone to trial.

And it’s not glamorous. Stengel estimates jurors make about $12 per day working on the grand jury.

So why can’t grand jurors grab just a little spotlight after refusing to issue an indictment on a highly charged case? Why can’t we know what happened or didn’t happen in that grand jury room?

“It’s not an arbitrary decision” according to Susan Brenner, a law professor at the University of Dayton and scholar on grand juries. Brenner was cited by Judge Morris in his ruling denying the release of grand jury proceedings in the Taylor shooting.

Aside from the bribery, threats or retribution that might await jurors after a controversial decision, the proceedings are secret to protect lots of other people.

“It also prevents letting the person who is being investigated from fleeing,” said Susan Brenner. “As the Supreme Court has said, (grand jury secrecy) also protects the innocent accused, people who are accused but are not charged.”

Stengel agrees, in principle, on the importance of grand jury secrecy.

He said, “If I had political opponents, I could investigate somebody who I didn’t like … and then issue a big thing where there were ‘unanswered questions’ and that sort of stuff. That’s what (grand jury secrecy) precludes, I think.”

However, Stengel charges there were few protection interests at stake to provide any good reason to keep the Taylor grand jury proceedings secret, saying that both officers involved in the shooting didn’t object to the release of the material.

“This was just such an important case and so difficult to understand how anything like that could be justifiable,” said Stengel. “I wanted everyone to see what the grand jury heard. And I also wanted to shut down the complainers who said ‘Stengel did something behind closed doors.’ I wanted them to see exactly what I did behind closed doors.”

Secrecy is so important to grand jury proceedings that anyone connected with the release of that material would be held criminally liable.

“If a court reporter went rogue and decided to release samples of the transcript without going through proper procedures, that court reporter would be committing the crime of criminal contempt for releasing those transcripts,” said Brenner. “Anyone who publishes those or releases them would be guilty as an accomplice in criminal contempt.”

Secrecy is generally maintained in grand jury proceedings, save the occasional “runaway grand jury,” in which jurors decide that they’re going to go public with their findings without the consent of the court. Those jurors usually find themselves under indictment by a future grand jury.

People not governed by the rules of secrecy are witnesses, who can walk directly out of the courthouse and up to a microphone and start talking about everything they told the grand jury.

Fix the system

“If the grand jury is not independent, there is not any reason to have it,” according to Professor Brenner. She advocates a more independent grand jury system.

“As it works now, prosecutors work closely with grand juries,” she said. “If you look at the law in most states, it will say that the grand jury is an arm of the court. And it is an independent agency.”

Brenner says the grand juries in centuries past were very independent and tended to conduct their own investigations on ordinary citizens and on local governments.

“If you go back to that time, people understood that a grand jury is not at all like a trial jury,” she said. “Trial juries are very passive. They just sit. Grand jurors are able to take an active part in the proceeding.”

A key component of grand jury independence, according to Brenner, is giving jurors the ability to have their own legal counsel separate from the office of the prosecutor.

“In dealing with the law, (grand jurors) need some legal adviser,” she said. “The way it’s developed in our system is that the prosecutor is at once their legal adviser.”

Stengel says it’s a “matter of course for his office to offer grand juries advice on indictments, but he says grand juries rarely ask for such advice once they come to understand their role on the jury.

“Our role basically is to say, ‘Here’s the law on it,’” and then recommend if an indictment should be issued. Stengel said his office offers recommendations in about “90 percent of cases” and that those recommendations are followed about “90 percent of the time.”

Brenner said the prosecutors who work closely with grand juries must therefore play two roles: the adviser and the advocate.

“That, by definition, means that the prosecutor is trying to encourage them, is trying to steer them in certain directions and may not want to explore other issues of interest to the grand jury,” she said.

Brenner would prefer to see more states do what Hawaii does with its grand juries and allow the jurors to retain their own legal counsel.

Stengel doesn’t see the conflict in the dual roles his office must play and said Brenner’s theory has some problems.

“Will that counsel be familiar with the workings of the criminal justice system to the degree that we are as prosecutors?” he asked. “Will that person take into account our ability to prosecute something? It’ll have some advantages, but it will have a lot of disadvantages. You’re going to get a lot of stuff through the grand jury that we would screen out as unprosecutable.”

Attorney Aubrey Williams, who represents the family of James Taylor and who has filed a wrongful death suit on behalf of the family, agrees with Stengel, and they don’t agree on much these days.

“That attorney won’t have to go before the public for a vote,” said Williams. “He will not have to answer to the public for his actions.”

Brenner also believes that grand juries should serve longer than the 20 days spelled out in Kentucky’s law, mostly so jurors would get used to their roles and not depend on prosecutors for advice on conducting investigations. Stengel said the time that people must take away from their jobs (and the low compensation) already provide significant inconvenience to jurors.

Brenner said that the fight over a civilian police review board might be eased with greater independence among grand juries, allowing them to look into all manner of possible misconduct, not just among police officers.

On that point, Brenner and Stengel agree.

“That’s what we’ve always said from the beginning,” Stengel said. “Your grand jury is a civilian review board and it’s got the power to subpoena, the power to cross-examine. You’ve got a civilian review board there.”

By Caleb O. Brown
SNITCH Contributing Writer

Megan Kanka was 7 years old when she vanished during a bike ride in her small suburban New Jersey neighborhood in July 1994. Police, firefighters and volunteers of all kinds shone lights up and down the residential street searching for her. Megan's mother pleaded with reporters to help the community find her daughter.

The community responded. Everyone up and down the block offered their help, including Jesse Timmendequas, a man who had recently moved into the house across the street. In fact, Timmendequas had seen Megan the day she disappeared. He'd been outside working on his car. He offered to carry a picture of the little girl, to put up flyers pleading for her return.

In his heart, Timmendequas knew Megan Kanka was not going to make it home, because he had abducted, raped and murdered her, then dumped her strangled body into the weeds of a county park.

No one knew Timmendequas had already been convicted twice of sexual assault. In 1979, he sexually assaulted a 5-year-old New Jersey girl and received a suspended sentence. He eventually served nine months for not fulfilling the terms of the suspended sentence.

He struck again in 1981, assaulting a 7-year-old girl. Timmendequas pleaded guilty and spent six years in prison. He then moved into Hamilton Township. No one in the town knew of his past.

After their daughter's death, the Kankas launched a crusade so Megan would not have died in vain. New Jersey and the nation took notice.

Megan's Law

Registering sex offenders is not new. California has been doing it since 1944. Kentucky has done it since 1994. In fact, registering those who commit various other offenses isn't new, either.

But Megan's Law added something very new: Convicted sex offenders suddenly had to keep the police aware of their residence and local police had to notify the community of the arrival of a sex offender in their midst.

New Jersey's ambitious attempt set off a flurry of such laws, and in 1996 President Bill Clinton signed a federal mandate telling states to either put Megan's Law on the books or lose federal funds.

Kentucky, like all states, quickly fell in line, turning its Sex Offender Registry into the primary means to notify communities of sex offenders. That included expanding the number of crimes covered by the registry maintained by state government.

Lt. Brad Bates with Kentucky State Police says the crimes included in the initial 1994 list of "registerable" sex offenses are first-, second- and third-degree rape, first-, second- and third-degree sodomy, first-degree sexual abuse, incest and first-degree unlawful transaction with a minor.

"The list expanded quite a bit after the federal law," he said.

Thanks to the federal mandate, offenses requiring registration now include promoting sexual performance of a minor, first-, second- and third-degree promoting prostitution (if the victim is a minor), second- and third-degree sexual abuse (if a minor is a victim), kidnapping, unlawful confinement and any attempt or solicitation for any of those crimes, Bates said.

And the number of registered offenders has grown as well. Bates said 50 to 60 new names are added to the sex-offender registry each month. From 1994 to 2000, around 1,800 offenders were added to the database. Since 2000, 1,250 offenders have been added. Right now, there are around 3,000 registered sex offenders in Kentucky. Indiana has more than 15,000 registered sex offenders.

The online registry maintained by state police is the principal method of making communities aware of sex offenders in various neighborhoods in Kentucky. Registered sex offenders in Indiana must register with local authorities. That information is then forwarded to the Indiana Criminal Justice Institute. Offenders' names, addresses, crimes and photos hit the web on or before the day they're released, according to state authorities.

Before the new sex-offender law went into effect, local sheriffs were charged with handling community notification, sometimes going door to door in neighborhoods to inform the public of a sex offender's presence. Since the federal mandate, that responsibility has shifted from authorities to individuals. If you want to know if a sex offender lives near you, you have to go online or call a hotline (1-866-564-5652) for the information.

Those sex offenders who have committed offenses that will get them listed in the registry must then check in with authorities at regular intervals and notify authorities whenever they move to another address inside or outside Kentucky.

Controversy

So is the registration requirement de facto probation?

Is it a scarlet letter hung over the necks of sex offenders that could possibly prevent them from getting employment or housing?

Opponents of portions of Megan's Law say the mandatory registration imposes an additional penalty on convicts, essentially punishing them twice for the same crime: They go to prison first, and then their names, addresses, photos and sex-crime backgrounds appear in public for all to see. They fear that reformed sex offenders may be the targets of harassment, and Kentucky even has a law protecting sex offenders from harassment.

Kentucky's sex offender registry states that "use of information from this website to harass a sex offender is a criminal offense punishable by up to 90 days in the county jail. More severe criminal penalties apply for more severe crimes committed against a sex offender."

Some supporters of the requirement say the registry and community notification is nothing more than an administrative penalty, like the removal of voting rights for convicted felons. The community, the supporters argue, has a right to know if a sexual predator lives among them. They say there is no constitutional right for offenders to keep that information from other citizens.

Still other supporters of the requirements say that Megan's Law notifications are no penalty at all, criminal or otherwise.

"The Kentucky Supreme Court holds that opinion as well," said Christie Floyd, an assistant commonwealth attorney in Jefferson County.

She cites the Kentucky Supreme Court's 2002 ruling in Hyatt vs. Commonwealth as evidence. The court found that registration statutes are not punitive and that they are reasonably related to the goals of protecting the public and assisting law enforcement.

Floyd, who also serves on Kentucky's Sex Offender Risk Assessment Advisory Board, added that requiring sex offenders to keep the state aware of their address is emphatically not probation.

"When someone's on probation, they're required to check in with a probation officer and do numerous other things," she said. "The registration and notification statutes really just place on the sex offender an obligation to initially provide this information and then to update any changes to that information."

The U.S. Supreme Court may decide otherwise within the next few months. The high court will rule by July of next year whether community notification programs in two states are unconstitutional. The court heard arguments on Nov. 13 on both cases. If it rules a certain way, perhaps hundreds of sex offenders could suddenly vanish from the commonwealth's fast-growing sex-offender registry. State police officials who maintain the registry don't know how many offenders might be affected.

Children vs. convicts

One of the two cases before the court is Smith vs. Doe, an Alaska case in which two offenders argue that they are being punished "ex post facto," or after the fact.

They argue their crimes were committed and they were convicted before the laws went into effect. If the court rules they're being punished after the fact, then dozens or hundreds of Kentucky's sex offenders may fall off the state's registry and out of the purview of interested communities.

In Kentucky's 1998 statute was a requirement that persons who were either convicted after that date or who were released from confinement after that date to register, according to Floyd. Essentially, the legislation was retroactive to include more offenders.

"The people released from confinement, some of their offenses occurred prior to the effective date of the statute," said Floyd.

If the Supreme Court rules against Alaska, Kentucky's registry would shrink to include fewer sex offenders.

Indiana's law differs slightly, and only sex offenders convicted after the effective date of the legislation are subject to registration, not just those released after the date.

The second case in front of the high court has similar implications. Connecticut Department of Public Safety vs. Doe involves two sex offenders who say their constitutional rights were violated because they didn't get a court hearing to determine if they're still dangerous. Twenty-three states have laws that require registration without the consideration of a court. Kentucky may also have to re-evaluate many registered sex offenders to see if their right to a hearing was similarly denied.

"If (the Supreme Court says) it's a penalty, then they might say that we have to give these people a hearing to say that they're not dangerous anymore," said John Powell, a staff attorney for the Kentucky Justice Cabinet.

Floyd added that many cases in Jefferson County have been remanded for hearings. But she said the high court may also effectively alter Kentucky's procedure.

Catherine O'Connor, executive director of Indiana's Criminal Justice Institute, agrees with Kentucky officials that both states' sex offender registries might have to be shut down while officials work with state attorneys general to interpret the court's ruling and adjust the registries.

O'Connor admits that Indiana does not afford convicts the right of a hearing to determine whether they should be put on the registry.

"Our law outlines which offenses require registration," she said. Kentucky, for better or worse, runs its registry the same way. If the court rules that sex offenders deserve a hearing to determine their risk to the community, Kentucky and Indiana may remand many more offenders' cases for such hearings, possibly shrinking sex offender registries even more.

But there is a bright spot parents might consider. Non-compliance with sex-offender registration in Kentucky is a Class D felony, punishable by up to five years in prison. A sex offender who skips town without telling the cops will likely face more aggressive extradition and prosecution than in other states. Few other states treat lack of compliance so harshly.

Delicate balance

Some of the most vocal critics of efforts to expand the scope of Megan's Law are also the most concerned with children's welfare.

Dan Armagh is an attorney for the National Center for Missing and Exploited Children. He advocates a balanced approach to applying the law, so that courts won't end up throwing out the good with the bad. Armagh cited the case of a truck driver who was convicted of soliciting a prostitute, then found himself to be a registered sex offender, even though there was no evidence that the man was a danger to anyone, least of all his grandchildren.

"Should he not be allowed to be unsupervised with his grandchildren?" Armagh said. "That kind of case demonstrates that you have to be somewhat judicious in what sex offenses you include in the registration requirement. The more selective you are, the better it's going to be in terms of withstanding constitutional scrutiny."

He says there's always a concern that if legislators go too far and apply Megan's Law to crimes that weren't anticipated when the original laws were passed, courts could end up throwing out the constitutional basis for the entire law.

That might not turn out to be a big risk in these Supreme Court cases, but Armagh says the cases here will still have a huge effect on how Megan's Law functions for communities all over the United States.

By Caleb O. Brown
Snitch Contributing Writer

"Must be a full moon."

That’s a common refrain among nurses, police officers and observers of crime or other unusual human behavior. Even among reporters, listening to police scanners and watching the wires can often make one believe that the full moon might be responsible for the violent or otherwise odd things that people do.

For believers in the moon’s ability to affect human behavior, a full moon explains a whole host of voluntary and involuntary actions: expectant mothers going into labor, criminals running rampant, emboldened drunks wandering the streets, increased domestic violence and assault, increased homicide and the resultant increase in emergency room visits and hospital admissions.

We all know that the phase of the moon affects the tides, (fewer people know that it’s the gravitational relationship between the moon and the Earth that makes some of it happen). Sir Isaac Newton explained all of that to us back in the 1600s. Believers in the moon’s effect on human behavior say we’re all regularly affected by the changing phases of the moon, and those same ocean-moving gravitational forces may very well be responsible.

Astrologer and author John Townley has written that murder rates in at least one study wax and wane with the phases of the moon, that another study found levels of postoperative bleeding following a similar pattern and that more babies are conceived as a new moon becomes a full moon than otherwise.

And, at least historically, astrologers aren’t the only people who have sought to explain human behavior through the movements of heavenly bodies. A 19th century economist, William Stanley Jevons, was convinced that economic cycles coincided with sunspot activity and wrote extensively to plead his case. In the last century, economist Henry Moore formed a theory of economic cycles based upon the position of Venus in the sky. Both theories have since been refuted.

But the belief that a full moon yields strange behavior is by no means limited to astrologers — economic or otherwise. Police and health care professionals routinely believe that a full moon in the sky means a busy graveyard shift for everyone on duty.


Everybody knows

“It’s just common knowledge around here,” says Cpl. Dennis Cunningham with the New Albany Police Department. “It’s just a busier time around a full moon. More crazy stuff goes on during a full moon than at other times.”

Kentucky State Police dispatcher Kim Lewis agrees. She has “no earthly idea” why the full moon has such an impact, but she’s sure it does.

Citing an unusual number of strange reports from the field, Lewis says, “Phone-call volume is higher for about three days surrounding a full moon. We get a wider variety of calls, too.”

Some teachers have noted that their students pay less attention and are a bit more rowdy during a full moon. Lynne Huckleberry teaches sixth grade math at Moore Middle School and she says most of her colleagues can spot a full moon just by observing student behavior.

“They’re more rambunctious during a full moon. We (teachers) can walk down the hall and tell that there’s a full moon. I don’t know if there’s a scientific basis for it or not, but we can tell.”

Nurses at Baptist Hospital East agree that there is just something about a night with a full moon, whether it be in terms of the variety of afflictions or the volume of women in labor.

Paula Gelhausen is a nurse manager in Labor and Delivery at the hospital. She says she sees the pattern every time a full moon comes around.
“We’re used to it,” she said.

“You just anticipate and know that during a full moon you’re just going to be busier.”

Most of Gelhausen’s colleagues across the nation hold the same belief, that lunar cycles impact the number of expectant mothers in labor and therefore the pace of the workday. Connie Cuadros, a charge nurse in the same department, agrees.

“When I see the big full moon at night, I’m thinking that I’d better get some rest,” she says. “Pregnant ladies are anticipatory of a full moon because they know that’s the night they might go into labor.”

Cuadros says the department doesn’t keep data on the statistical difference between full-moon nights and other nights. Gelhausen says no staffing decisions are made based on lunar cycles.

Lt. Col. Mike Helm with the New Albany police was an orderly at Floyd Memorial Hospital before becoming a police officer. Combined, he has 25 years of experience observing the changes in human behavior during the full moon.

“It just brings out the worst in people,” Helm says, stressing that violent crimes like rape and assault are more numerous under full moons than at other times of the month.

Helm doesn’t recall specific full moons in the past when crimes may have occurred, but he’s confident that the trend would be easy to document.
“Statistics will probably bear that out,” he said.

In fact, statistical evidence does not support any of the preceding claims.


Where there’s smoke...

Louisville Fire officials took a quick look at data for the previous two full moons and found nothing that made full moons look suspicious.

Lt. Col. Tom Carroll is assistant director of Operations. He says the moon has not been shown to have any impact on the number of runs that firefighters make.

“We found that whether or not there was a full moon had no bearing on the number of runs made by fire crews on those days,” he said, adding that factors like day of the week and storm damage largely determine the range of runs made.

Carroll says he doesn’t buy the full-moon hypothesis.

“I’ve never noticed it,” he said. “One day is just like another, regardless of whether the moon is full.”

But fires are often random. They are not always acts of humans, but acts of nature.


What about hospital visits?

Baptist Hospital East uses a statistical package called LogiCare, which allows the hospital to track patients from minute to minute, from the emergency department to longer-term care. The program allows the hospital to adjust levels of staffing based upon various factors contributing to a need for additional or reduced staff at regular times.

Susan Domagala says the moon plays no role in any staffing decisions, and for good reason.

“We have not identified a statistical correlation between patient volumes or types based on the phases of the moon,” she said.

Domagala examined data on admissions, particular complaints like depression or alcohol abuse, ambulance transfers and many other factors.

She found no correlation between any of those things and phases of the moon.
Nearby Jewish Hospital had similar results for emergency room visits. Jeff Polson is a spokesman for the hospital.

“Our emergency department reviewed four months of emergency room data,” Polson said. “They did not find a trend. There is no notable difference between full moons and any other night in the number of people presenting at the emergency department.”


Pygmalion effect?

Jack Fletcher directs Eastern Kentucky University’s planetarium.

He says the evidence for the theories surrounding the full moon simply doesn’t exist.

“When you look at the statistical evidence, it’s not there. The statistics do not bear out that there’s any more crime or that more babies are born during the full moon,” he said.

Fletcher says some myths that are widely believed are examples of the Pygmalion Effect, or the idea that perceived outcomes are often shaped by our expectations. If we expect to be busier during full moons, we might subconsciously seek out evidence to bolster our belief that full moons cause us to be busy. Presto! The outcome is one we expect based upon the beliefs we hold.

Iain Murray is director of research at the Statistical Assessment Service (www.stats.org).

Said he: “Every time someone has done a proper review of activity in emergency rooms or criminal activity associated with phases of the moon, they found no difference, whether the moon was full or waxing or waning.”

Murray says that when the moon isn’t full, you don’t make the correlation between crime (or childbirth or emergency room visits) and the moon and vice versa.

When the moon isn’t full, he says, “It just won’t stick in your memory. That’s the problem with these things. That’s why when they do scientific studies they can’t find any correlation at all.”

If it’s any consolation, consider this: Although none of the researchers could find a relationship between the moon and human behavior, all of them say that doesn’t conclusively prove there isn’t a relationship.

Some things don’t show up on statistics, they say.

By Caleb O. Brown
SNITCH Cincinnati Contributing Writer
June 2002

No one likes flashing blue lights, especially on a lonely night through the rearview mirror. Your sweaty palms and racing heart are preparing you for the worst.

But why? You haven’t done anything wrong.

The officer approaches a few minutes later and asks for the license and registration that you’ve been thumbing for the last several minutes. He takes them and asks if you know why he pulled you over.

You swallow and offer a meek, “No, sir,” as another cruiser pulls up behind the first one.

“Your taillight was out,” he says, tapping your license between his fingers. You sigh, loosen your grip on the wheel and relax. The other officer runs a beam of light across the interior of your back and front seats.

The officer then adds, “You mind if we look in the trunk?”

You feel a bit insulted and unjustly suspected, but because you want this situation to end, you oblige and allow the officers to prod several other parts of your car as well. One officer even pats you down. You watch blandly, wanting to ask them to please leave, but you stay silent. After all, they’ve got the badges and guns.

The disappointed officers end the search, thank you for your time and send you on your way. The tightness in your chest and profuse sweating haven’t subsided and you’re furiously trying to think about how you could have, should have, handled that situation without feeling so powerless.

Pop quiz: When did you waive your right to say “no”? Did you consent to the seizure and subsequent search? Did the police violate your rights at all?

If you’re like most people, you don’t know what rights you have during a traffic stop. What’s more, you probably wouldn’t stand up for them if you were a criminal law professor.

Christo Lassiter teaches criminal law at the University of Cincinnati’s School of Law. He’s felt like kicking himself more than once after consenting to various minor invasions during a traffic stop.

He says the power differential between the police and lone citizens is so great that drivers — innocent and guilty — alike consent to things even when they know that they are waiving their rights.

“In the two times I was pulled over, I found myself consenting and hating myself for it,” Lassiter says. “Police are trained to exploit traffic stops for maximum benefit. Lack of knowledge of your rights isn’t the reason people consent.”

Lassiter contends that when an officer asks for your consent, they do so in such a way that draws no distinction between the reason for the stop — such as a broken taillight, rolling through a stop sign — and a “fishing expedition.”

Lassiter says that once an officer has investigated the reason for the stop, “You’re on consent time” with regard to the questions that follow.

“If a law enforcement officer stops you for a busted tail light, and he’s finished investigating that tail light, his authority is over,” Lassiter says.

He says officers are trained to get consent by making a concealed leap from “legal investigation time” to “consent time.”

“It’s a seamless transition,” he says. “Absolutely seamless. I’ve got videotape of the (Ohio vs.) Robinette case, and you simply can’t tell where you switch from the initial reason for the stop — going 55 in a 45 zone — to a narcotics check.”

Ohio vs. Robinette

Sometimes it’s great to live in Ohio. Across the river in Kentucky, that “seamless transition” from the reason for the stop to the “fishing expedition” is a routine matter for police. The subtle transition is one that often gives police the chance to poke through a citizen’s passenger compartment, trunk or unlocked glove box.

In Ohio vs. Robinette, the U.S. Supreme Court held that the Fourth Amendment does not require that police give any kind of “warning” or say, “You don’t have to allow this,” before seeking consent to search your car.

That made Ohio prosecutors happy. Luckily for Ohio motorists, that wasn’t the final word.

Ohio Supreme Court justices found that while police officers need not give warning, the officers must “clearly demonstrate” that a motorist would feel free to go before an officer requests such a search.

In other words, immediately after you decline to allow police to rummage through old Dr. Pepper cans and sticky straws, you can start up your car and go about your business. In that particular circumstance, Ohio is the exception, not the rule.

Shorten the stop

It’s a pretty simple process to avoid a stop, but sometimes the basics are easy to forget. Even if you have your papers in order, you may not be able to avoid the long, and sometimes annoying, arm of the law.

When an officer stops you, he’ll immediately ask for your license and registration. If your registration isn’t with you, the officer may reasonably ask, “Is this your car?”

It’s best to avoid that line of questioning altogether. Thus, it’s probably a good idea to keep those two items handy, along with making sure your car has the proper tags and all your lights and blinkers are in proper working order.

The American Civil Liberties Union produces what it calls a BustCard, a short explanation of your rights and recommendations for making your visit with The Man go a little more quickly.

Among the recommendations, the card suggests that you make it crystal clear to the officer that you do not consent to any kind of search of your vehicle. That way, if something illicit is discovered, it’s inadmissible in court.

It’s easier than you might think to make the police stop short and sweet without — out of a desire to cooperate — giving up your rights.

Lassiter says that when the police ask for license and registration, the motorist should respond, “Here you go officer, but I don’t consent.”

He believes it’s more important that you speak the “no consent” declaration many times, clearly, and at the beginning of the conversation so that there can be no question or confrontation on the matter later. Lassiter goes so far as to recommend that drivers practice so that it will be easier to refuse consent should the occasion arise.

“If you can actually voice those words, you might actually win something in that dynamic, but it’s really hard to get that out,” he said.

The ACLU’s Bustcard states, “If you’re suspected of drunk driving (DWI) and refuse to take a blood, urine or breath test, your driver’s license may be suspended.”

Terry Cosgrove, of the Cincinnati Law Department, advises police on such matters. He says refusing a breathalyzer test will get your driver’s license suspended, but it’s not a criminal penalty.

“In other states, refusing a breathalyzer test is a fourth-degree misdemeanor,” Cosgrove said. “In Ohio, it’s not a separate crime.”

This is routine?

Before you start denying consent left and right, though, it’s important to note what police can make you do during a routine traffic stop. A series of U.S. Supreme Court rulings have boiled down to a series of powers police do have, balancing the interests of public safety against Fourth Amendment protections.

Police can order a driver out of the car during a routine traffic stop. Police may frisk a passenger or order passengers out of the car, but cannot compel passengers to identify themselves. Police do not need to advise you of any of your rights unless you are arrested.

If you are arrested, police can search the available portions of your vehicle, including the available portions of the passenger compartment and — if it’s unlocked — the glove box.

Roadblocks

Police can pull you over for one of three reasons: probable cause, which means they have observed you committing a crime; reasonable suspicion, which means that, more than likely, you have not committed a crime, but you might have. It’s a lower, less definite, standard.

Or, in the case of a roadblock, police can pull you over for no reason at all.
Thankfully, in Ohio, police don’t engage in drunk-driving checkpoints, but it’s a matter of procedure for officers rather than mandate from the law books.

Cosgrove says police don’t use roadblocks because police “didn’t find it was that effective.”

He says the police department found that individual officers, for example, could take more drunk drivers off the road than the same number of officers working one roadblock.

Still, roadblocks go on all the time, but rest assured that during a roadblock, your car will not be targeted, Grateful Dead sticker or not. Officers conducting checkpoints are not allowed to use any discretion in choosing which cars are stopped at the checkpoints. This helps eliminate allegations that officers are profiling motorists.

A procedure could be “every second car, every third car … a procedure where every car is treated the same,” Cosgrove says.

But roadblocks generally seem to be constitutional, at least for drunk drivers.

Police — in the interest of public safety — can require a motorist stopped at a roadblock to step out of the car, provide “lung samples,” and undergo a field sobriety test.

Lassiter stresses that when an officer pulls you over, he or she is not there to give you a lesson in your rights.

Regardless of what the courts have decided, he said, police exist to investigate, stop and prevent crime.

A Court Officer in a Brave New World
U.S. Attorney Steve Pence says Americans face new threats in the wake of Sept. 11 [pdf]
Snitch - May 9, 2002

By Caleb O. Brown
Louisville Eccentric Observer

Disclosure last year that the U.S. Postal Service and Federal Express Corp. were in talks to form what was termed a "strategic alliance" drew early fire from such powerful voices as GOP Congressman Henry Hyde and United Parcel Service Inc., FedEx's strongest competitor.

Following the announcement, Hyde - as chairman of the House Judiciary Committee - drafted a letter to Joel Klein, then head of the antitrust division of the federal Department of Justice, asking him to look into the antitrust implications of such a deal. There was one obvious problem with the request, however: The Postal Service is immune from antitrust laws. And Hyde, whose term as Judiciary Committee chairman concluded at the end of the year, still has not received a response from either Klein, who has since resigned or other DOJ officials.

The Postal Service's Board of Governors was expected to formally review the prospects of a joint venture with FedEx at a meeting scheduled for after LEO's Tuesday press deadline. Prior to the session, neither Postal Service nor FedEx officials had been forthcoming with many details. For its part, FedEx had done little more than reluctantly confirm that there had been talks. "Formally, or informally, we have been meeting," said FedEx media specialist Jim McCluskey. (See related story on Page 12.)

That such negotiations have been underway is indicative of the identity crisis at the Postal Service, which is trapped between its public mission and its government-guaranteed monopolies. The Postal Service, a tax-exempt federal agency with the mandate to provide what its leaders call "universal service," reported continued operating losses in November and badly needs a way to turn things around and generate new revenue.

One possibility is to further delve into e-commerce and its promise of increased package deliveries -- areas dominated now by UPS and FedEx. UPS spurned the overtures, but FedEx is apparently interested in exploring the idea.

There's at least one obvious problem for anyone who would compete with such an alliance: The Postal Service controls the rates all carriers can charge.

Since the idea was announced, critics have wondered about the degree to which FedEx would share the Postal Service's monopoly powers. Would FedEx be allowed to sell its products in the thousands of post offices nationwide? What kind of competitive advantage would FedEx gain by affiliating strategically with a federal agency that not only pays no taxes, but regulates its competitors as well?

Letters R Us

If you didn't know any better, you might actually think the Postal Service was a private company with an official-sounding name. A phone call to the Postmaster General's Washington, D.C. office (202-268-2500) is met with a recorded welcome to "corporate headquarters." Pointing your Web browser to usps.gov sends you to the same page as usps.com. Television spots from the Postal Service have favorably compared the agency's rates with those of UPS and FedEx, with The Steve Miller Band providing the soundtrack. In post offices throughout the country during the recent holiday season, patrons saw posters and merchandise from the Universal Films release "How the Grinch Stole Christmas." Signs wished customers "Happy Wholidays!" while USPS employees sold Grinch merchandise. The Whoville Post Office was portrayed favorably in the film.

The fact that the Postal Service looks private, however, has little to do with its monopoly power.

While the Postal Service does not receive an annual appropriation for its operations (other than reimbursement for delivering mail to the blind and nonprofit organizations at a discounted rate), it has been allowed "special privileges." For example, the agency is exempt from property and income taxes. It receives favorable interest rates when borrowing money. It charges no tax on retail items and does not pay U.S. Customs to process packages, as private carriers are required to do.

As for the Postal Service's recent foray into e-commerce and expanded package delivery, that's where the money is. The most costly portion of operation for the Postal Service is fulfilling its public obligation of universal service -- delivering to every postal address in the United States.

Doing that, however, has become increasingly less profitable. And in an age of e-mail, direct deposit and online bill payments, the Postal Service estimated that operating loses for 2000 would be $200 million and would reach $480 million this year. The 2001 losses would be lessened by the 1-cent rate hike that took effect this week, but ironically, about a third of the shortfall is attributed to the federal government delivering checks and other mail electronically rather than by post.

In other words, the post office needs to find a way to make its public mission profitable and must use its advantages to make door-to-door delivery a venture that doesn't lose money.

Enter Federal Express, second only in size to UPS among private carriers in the United States.

Critics, like UPS spokesman Steve Holmes, say an alliance between FedEx and the Postal Service "goes to the core issue of whether a private company should be able to leverage government assets."

And it appears the private business and the public entity could reap real gains from the alliance.

Louisville Postmaster Bob Lochhead says the proposed alliance would give the Postal Service access to FedEx's cargo space on shipments throughout the country. FedEx, for its part, would gain coveted "last mile" delivery for many of its packages, using mail carriers. That is, the Postal Service would use its door-to-door routes to deliver packages for FedEx in addition to regular postal letters.

There is nothing prohibiting FedEx or UPS from delivering to residences and businesses -- indeed, they now do -- but as Lochhead pointed, out the Postal Service also routinely has access to other drop points, like post office boxes, where other carriers "can't legally go."

While it seems a no-brainer about why the Postal Service would want to attach itself to a profitable private carrier, others see potentially large problems with such an alliance and the impact it would have on the marketplace and on those left out of the alliance, like UPS.

"UPS has some big plans in my district," Hyde said during a telephone interview last month. "I simply question whether this discussion between FedEx and the Postal Service is an open process."

Hyde's letter to Klein, the Justice Department's former antitrust head, said, "If the Postal Service were a private entity, any final alliance would certainly require scrutiny by the Antitrust Division." He added that the alliance shouldn't be confirmed without "a full understanding of its competitive implications."

Soon thereafter, two other Republican congressmen -- Dan Burton, R-Ind., and John McHugh, R-N.Y., -- raised similar concerns in a letter to Attorney General Janet Reno, calling attention to the fact that the Postal Service is, in fact, immune from antitrust laws. There has been no response from Reno, and presumably, the issue would be addressed by the new attorney general if Reno does not answer before the Bush administration takes over the reigns of government on Jan. 21. (Former Sen. John Ashcroft of Missouri has been nominated by President-elect Bush to succeed Reno.)

Regarding the proposed alliance, Rep. Anne Northup, a Republican who represents Louisville's 3rd District, was mum. Northup, who sits on the Treasury-Postal Appropriations subcommittee, said through a spokesman last month: "We will be questioning the Postmaster General about this proposed alliance when he appears before our subcommittee in the spring."

She may be able to do little more than question the postmaster general, however. It's unclear what authority, if any, Congress has over the Postal Service. Of Kentucky's two Republican U.S. Senators, Jim Bunning did not return phone calls, and Mitch McConnell said, though a spokesman, that he has a staffer "working on it."

Though UPS' Holmes said FedEx would be "leveraging government assets" for private benefit, a Postal Service official said in published reports that there would be "no exclusivity" in talks with FedEx. Speaking to Government Executive magazine in October, Postal Service spokesperson Azeezaly Jaffer said, "There is an open seat at the table."

Though the comment seems clearly meant to suggest the Postal Service's openness to new relationships with the private sector, it led some to ask what the Postal Service means by "strategic alliance" -- if not exclusivity.

"Most people wouldn't call that a strategic alliance," said Ed Black, president of the Computer and Communications Industry Association, a public policy group. "It may be a way to put pressure on other firms to step up to the table."

Black considers the Postal Service an inefficient monopoly that can have a pronounced negative impact on private firms, especially since it loses money on so many of its ventures, like online bill paying and even its own merchandising. "Could you imagine Ford regulating the auto industry and then competing with GM?" Black asked. "The Postal Service has regulatory power and poses as a competitor."

Postmaster Lochhead is more optimistic about the efficiency gains for consumers with such an alliance. "The Postal Service has a public mission. That mission is universal service for all deliveries throughout the United States."

Lochhead, unlike Black, considers the Postal Service something that UPS might actually want to have around, even if no strategic alliances were in the picture.

"If you look at who has the monopoly on package delivery, it's UPS," said Lochhead. "They've got it locked up. We can't touch them. But UPS needs us in a way. Without us, they might be deemed a monopoly and brought into antitrust court like Microsoft."

UPS spokesman Holmes called that idea "preposterous.

"It's no monopoly," he said. "The competitive environment for package delivery is more intense and more vibrant than it ever has been. It's the competitive environment that is a level playing field. That's where you've seen real innovation."

Holmes added that the Postal Service has an ace in the hole. "We're required by law to charge double for any products that compete with theirs," he said. "The Postal Rate commission sets their rates, and we have to charge twice that. The Postal Service's TV ads don't say that."

By Caleb O. Brown
Contributing Writer (Louisville Eccentric Observer)

Perhaps the most-touted example of rapid transit in the United States is the light rail system in Portland, Ore. What makes Portland worth special study is that it doesn't matter who you ask - detractors and defenders take special care to show what light rail has done for, or to, Portland. And both groups tend to say the credit (or blame) should be directed at attempts in Portland to dovetail land-use planning with light rail development.

Oregon's statewide land-use rules are among the most stringent in the country. David Coyte, a light rail advocate here, argues that land-use regulations in Oregon have facilitated higher density developments and promoted what he calls "transit-oriented development," or mixed commercial-residential developments that are created around transit stops.

Coyte predicts developments built around transit centers here will in turn lead to wider use of transit, and a subsequent reduction in auto dependence, as well as more localized commerce. Barry Barker, executive director of TARC, says about $1.3 billion has been invested in developments along light rail stations in Portland.

But Randal O'Toole, of the Bandon, Ore.-based Thoreau Institute (http://www.ti.org), a public policy think tank specializing in conservation issues, disagrees sharply with the assertion that Portland's mixture of land-use regulations and light rail has been even remotely successful. O'Toole, who has written extensively on the Portland experience with light rail and land-use planning, said that Metro, Portland's metropolitan land-use planning organization, built into its models overall increases in air pollution, although Metro officials don't necessarily like discuss it.

"Currently, about 92 percent of Portland trips are by car and 2.5 percent by transit," said O'Toole. He added that the remainder of the trips in Portland are by foot or bicycle.

"Portland's Metro predicts that, if they can increase population density by 67 percent, build 100 more miles of rail lines, force developers to build transit-oriented developments and pedestrian-friendly design, that these numbers will change to 88 percent by car and five percent by transit. Congestion will also triple, leading to a 10-percent increase in air pollution."

O'Toole said the predictions are not his own, but from the appendices of Metro's own transportation models. "Ironically, a plan to increase air pollution by 10 percent is widely regarded as a model for other cities," said O'Toole.

But Portland is indeed a model for proponents of light rail. Transportation planner Shawn Dikes, who has consulted with TARC on its transportation plans, said he sees the potential for TARC to work with planners to create a transit-friendly land-use plan.

"Portland has kind of been the pioneer of transit-oriented development," said Dikes. "Will we do that to the degree that will make some of our stations in Louisville successful? I think we can, and I think there are some excellent opportunities for TARC to team up with Louisville and Jefferson County. They've just done Cornerstone 2020, which is the region's comprehensive land-use plan. There is a great opportunity to designate the south-central corridor as some sort of rapid transit development district, which would be a gigantic overlay zone, allowing developers at individual station locations to do some innovative things."

However, Dikes said, he sees some things holding TARC back.

"Oregon has statewide planning regulations," he said. "Kentucky does not. Typically, the marketplace drives a lot of the land development activities here. Louisville doesn't strike me as being very proactive in some senses. Only a place like Portland is really that proactive."

TARC's Barker, in an interview last year on WHKW's "Community Roundup" program, said the mixture of land-use planning and transit in Portland, among other cities, has proven transit can attract new development.

The potential exists for the type of developments Barker, Coyte and Dikes would like to see in Louisville, but Portland's experience hasn't proven mass transit alone can attract such development.

"Recently, the city of Portland has had to give developers 10 years of property tax breaks if they will build on the light rail line," said O'Toole. "Other cities in the Portland area are giving direct subsidies to encourage development."

O'Toole called the problem of getting developers to build along rail lines a "chicken and egg" problem. He contends Portland's attempts to spur the developments have failed miserably.

"As it turns out, once built, these developments are not generating much ridership. Eight out of nine people in the apartments built along Portland's light rail drive to work." Further, O'Toole said the proportion of those who live in transit-oriented developments in Portland take transit to work is no greater than anywhere else in the city.

Dikes suggested Louisville can only mimic some of what Portland has done toward mixing land use and transit developments. With no statewide planning regulations, he said, TARC simply cannot exercise much control without chasing development into other counties, he said.

By Caleb O. Brown
Contributing Writer (Louisville Eccentric Observer)

Louisville will build a rapid transit line in the next 10 years. That's a given. Proponents say it will address the problems of air pollution and workforce development, as well as play a role in re-creating an urban landscape that mixes residences with local businesses and reduces dependence on automobiles.

But evidence from consultants hired by TARC and others who study the matter provides only the mildest indication that rapid transit will help reduce pollution and bolster the workforce. And further evidence from the widely touted light-rail experience in Portland, Ore., also provides little proof that Louisville can achieve the delicate mix of transit and land-use regulation, because, according to many observers, the jury is still out on whether Portland has achieved those goals.

To the people selling rapid transit in Louisville, though, all of those points are easily dismissed. Though TARC officials are vague about what will constitute "success" for rapid transit in Louisville, they are resolute in saying that a true conclusion likely can't be drawn for 10 or 15 years after the system is built. CALEB O. BROWN tries to take a look into the future.

Last July 15, moments before the executive board of TARC voted to institute a "rapid transit" system in Louisville, one board member raised concerns about how the proposed system would be oriented. The proposed system would be a single line running along a north-south corridor. However, the board member asserted, the most popular TARC line runs east-west. But his comments were quickly forgotten in the bevy of camera flashes that captured the eventual decision.

The questions now being debated in the second phase of TARC's $1.5 million Major Investment Study (MIS) are those of engineering and land-use planning - the hows of rapid transit. There will be rapid transit in Louisville: TARC Executive Director Barry Barker said if everything goes right, the system could be operational in 2007.

Questions about the expected benefits, however, remain.

Probably the most important decision facing TARC is whether its rapid transit system will consist of light rail or bus rapid transit (see definitions, opposite page). Phase I of TARC's MIS lays out what is likely to happen with either choice. Aligned with I-65, either would provide a new connection between many of the attractions along the line. TARC officials hope it also will serve as a backbone for future developments. At the southernmost end of the north-south line would be a park-and-ride lot for commuters, who would then take the rail line the rest of the way to their destination. There will be stops at UPS/Fern Valley Road, Louisville International Airport, the Southern Heights neighborhood, Papa John's Cardinal Stadium, the University of Louisville Student Activities Center, and on to downtown, where the line loops. Both would have exclusive right of way, though only light rail will be separate and distinct from automobile traffic.

Although no decision has been reached on the type of rapid transit to be built, there's a sense that light rail will prevail.

And proponents of that option don't seem to mind that it is expected to cost as much as $150 million more than bus rapid transit, or that it is projected to have fewer riders. People who are active in the debate say perception is very important to the issue.

"Perception is a very real thing, and it affects people's behaviors in a very significant way," said David Coyte of New Albany, who belongs to the Committee for the Advancement of Regional Transit (CART), a group that has long promoted light rail in Louisville. Coyte argues the public has a favorable perception of light rail, and he said that's why CART supports light rail over bus rapid transit. Ad-Additionally, Coyte said buses are perceived as being less safe than light rail vehicles, which look and act more like trains.

Aside from being more friendly to commuters, TARC Executive Director Barry Barker said, light rail is simply more romantic than buses. In an interview last year on "Community Roundup" on WHKW radio, Barker said of the community response: "Most of the reactions have been that light rail thrills people's souls, and buses they're not so sure about."

The public seems largely confused about the matter, thanks in part to local media and other high profile people who have discussed it publicly. Tom Owen, who made an unsuccessful bid to become mayor, made light rail a plank in his platform. A Courier-Journal Bluegrass State Poll indicated 76 percent of Jefferson County residents support the light rail option, although bus rapid transit was not mentioned. Even LEO Editor John Yarmuth, shortly after the July decision to build rapid transit, declared Louisville had committed itself to spending millions on light rail. Light rail in Portland, Ore. and St. Louis has provided examples for supporters to ogle. In this case, what many supporters treat as a foregone conclusion is a decision that is still many months away.

Though it's easy to forgive the public for not knowing what's at issue in the debate on transit in Louisville, the pursuit of good public policy might make it wise to insist on more direct evidence of the eventual benefits, especially for a capital project that may demand $450 million, the bulk from public funds. But that may or may not be forthcoming.

TARC officials said rapid transit will primarily address problems that include traffic congestion (particularly on Interstates 264, 65 and 64) and the resulting air quality problems. It also is meant to aid workforce development, and connect an increasingly diffused (low-density) metro population.

RAPID TRANSIT: POLLUTION SOLUTION?

Mary Lou Northern chairs the TARC board of directors. She said bottlenecks on freeways in Louisville reduce traffic speed and have increased air pollution in Louisville. Northern said rapid transit is the answer.

"This community struggles every year with meeting federal guidelines for air pollution control," said Northern. "It hurts our ability to get some business and some federal money. That's going to get worse unless something is done about it."

By federal money, Northern means highway improvements that could play a role in relieving congestion. She said she feels the pinch of traffic congestion every day when she drives into the city from the South End.

"I see the congestion at 264 and 65 every morning and every afternoon. You sit there and you sit there. Five years ago you didn't sit there."

Northern said she's confident the planned rapid transit line will alleviate air pollution, and therefore lighten the burden of controlling it.

"The major contributor to air pollution is the automobile, and the only solution to that is a rapid transit system," she said.

However, many others, even some who conducted research for TARC, have less enthusiasm for characterizing rapid transit as the "solution" to air quality problems. "If you're looking to transit to fix your air quality problems, you're going to be very disappointed," said Shawn Dikes, a transportation planner with Parsons Brinkerhoff in Louisville. Dikes, who was the lead consultant on the first phase of TARC's Major Investment Study, said transit should be part of the mix for improved air quality, but he said fixing air pollution problems can be tricky.

"It's not a silver bullet cure," he said. "There's a whole host of things you have to consider that are part of that big picture. To get people out of their car, there has to be an option. Transit has to be convenient. Travel time has got to be competitive. It's hard to compete with gas prices that are (adjusted for inflation) the lowest in recorded history."

Dikes said developing a rapid transit system is a step in the right direction because it creates an additional option. He argues getting people out of their cars can only begin to occur when there is an alternative, and he said rapid transit is a good one.

However, he said, the only way air pollution can be measurably reduced is to lower the number of "cold starts," or the times a vehicle's catalytic converter must warm up to catch pollutants before they are released. He said Louisvillians are making an ever-increasing number of inter-county trips, and that very few people merely go to work and then back home. And multiple trips cause more cold starts.

"People drop the kids off at daycare, they drop off dry cleaning, they run a lot of errands," Dikes said. "It's tough to develop transit service for those types of trips."

Some critics have said that despite the hefty price tag and touted benefits, rapid transit will do absolutely nothing to curb congestion or measurably impact air quality in the region.

"Violations of EPA air pollution standards are almost perfectly correlated with population density and congestion," said Randal O'Toole, head of Oregon's Thoreau Institute, a public policy research institution specializing in conservation and environmental issues.

O'Toole said cars pollute more in congested traffic, and that congestion increases with population density. The EPA currently rates Louisville as a moderate "ozone nonattainment" area in terms of air pollution, a problem O'Toole said would not be lessened by rapid transit.

"In 1990, only 3.2 percent of Louisville commuters rode transit to work, while 94 percent drove," O'Toole said. "Even doubling transit ridership, which rapid transit would not do, will have an insignificant effect, as more than 90 percent of commuters would still be driving."

And even driving may not pose the environmental problems light rail proponents would like to believe. The study commissioned by TARC, conducted by Parsons Brinckerhoff and other consulting firms, showed, "a steady improvement in air quality in the region during the 1980s and 1990s despite significant increases in travel.

"Improvement in mobile source emissions have been due primarily to cleaner engines," the report said, and "improved emission control systems, cleaner fuels, vehicle fleet turnover, and more rigorous vehicle inspection, testing and maintenance programs."

The study did say air pollution problems persist in Louisville despite the improved air quality, and that as of July 1998, the Louisville region already had one ozone violation for the year. The study noted, however, that occurrences of ozone violations were more frequent and severe in years before 1998.

GET ME TO WORK ON TIME!!

There's a clear relationship between air pollution and workforce development Northern asserted that being labeled an ozone nonattainment area hurts Louisville's job outlook. And, although it seems unclear how rapid transit would specifically address air pollution problems, Northern said industry leaders have focused their attention on how such a system would help them get workers to their jobs. She said about 40 percent of the region's jobs lie within an area serviceable by the proposed rapid transit.

"With the growth of UPS and the growth in the medical center, this community needs more workers," said Northern. "(Businesses are) going out into rural areas to bring those workers in. If you can make it easier for people who are coming into this county to work at their jobs, and they will be able to with this changed system, it's going to be a big boost to workforce development."

TARC's goal in conducting a Major Investment Study, focused on a single corridor of the city, was to connect a large share of the region's jobs. An important question raised by critics, however, is how far those jobs, or the workers, will be from transit stops.

"How many of those jobs or residents are going to be within a quarter-mile of a station?" asked Wendell Cox of the Cox Consultancy, which crunches numbers for every major public transit system in the country.

Cox said most research indicates people are willing to walk only a quarter-mile to reach a transit station, a figure confirmed by Dikes. Beyond that, Cox said, people would rather get in their cars. Based on that notion, Cox said a transit "corridor" cannot feasibly be wider than a half-mile (a quarter-mile strip on each side of the transit stop).

"They aren't corridors, they're nodes," said Cox. "I'm finishing up a report on the Dallas transit system where they're building a light rail system. When they're finished, they'll have about 53 miles of light rail. In fact, there will only be 41 stations. So the land area that will be within walking distance of those 41 stations will be 8 square miles.

"That's out of a 700-square-mile service area. You can't look at wide corridors. It's absolutely meaningless. It's a trick that people trying to sell overly expensive projects use."

Cox admitted his own experience has jaded him somewhat. It was an amendment he attached to a tax measure, two decades ago when he served on the Los Angeles County Transportation Commission, that provided the funds for light rail there. Cox said the Los Angeles light rail system is among the worst in the country, with huge cost overruns and pitiful ridership.

Cox said Louisville's rail system should expect lower-than-projected ridership because transportation planners have created unrealistic transit corridors. He said workers are concerned about saving time in getting to work, and are much less concerned with saving gas or money. Even the most fervent supporters of rapid transit agree that commuters are primarily concerned with time.

Cox said the phrase "rapid transit" is disingenuous.

"My view is rapid transit should be fast," he said. "As far as I'm concerned, anyone that tells you light rail is rapid transit is lying to you. Period." To support that assertion, Cox said the average speed of the fastest light rail system in the country is 18 miles per hour.

"According to the Texas Transportation Institute, which does this work for the Federal Highway Administration each year, the average freeway speed in Louisville during peak hours is 52 miles an hour," said Cox. "The average speed for an arterial street, that is a signalized street, is 28 miles an hour. So, light rail is a little bit more than half as fast as an arterial street."

Northern said that, although commute time is an obvious concern, it shouldn't be the only one, especially given the lengthy timetable of the project. Northern said commutes will become steadily more time-consuming over the next several years, and she contends Louisville cannot pave its way out of growing congestion problems.

"The thing I tell people is that they need to think differently about rapid transit than they think about buses or cars," she said. "You have to think 10 years or 20 years out. You can't think, `If this is built tomorrow, what does it mean to my drive time?' The main thing is that you can't think of traffic and you can't think of accessibility right now. Though some of the data comes from today's figures, you have to really think 10 or 20 years out."

Given the expected increases in commute times, Northern said she sees transit centers as potential mixtures of commercial and residential development. That, Northern said, will get people to go the extra distance to get to a transit stop.

"If I were a nurse at the medical center and I lived at the Bullitt County line, I could drive to the park and ride lot and get downtown," said Northern. "What if I needed some groceries or needed to drop off some dry cleaning, or I needed to stop at a drugstore to get some medicine before I went home? What happens around transit centers is that type of development. As the nurse going home, I could make that stop on foot, buy all the things I need, get on the rapid transit, go out to the park-and-ride lot and go home." Evidence is mixed on whether transit can yield the developments Northern has predicted. As Bill Sexton, director of TARC's Transportation Tomorrow (T2) has said, TARC simply can't control every aspect of this project.

COOPERATION AND THE CORNERSTONE

Very little can be confidently predicted about what TARC's rapid transit will bring to Louisville without considering the work of Cornerstone 2020. Although the controversial project has been dogged by media and government for being too expensive, too slow and poorly centered, it bears repeating that many of the numbers used by TARC to make its projections have come from Cornerstone.

Sexton said it's vital for the transit plan to be coordinated with Cornerstone 2020 if there is to be successful implementation of transit development. Moreover, if development along transit lines can take hold, Cornerstone must zone many areas in the county for mixed-used developments, which would allow residents and commerce to coexist - and hopefully thrive from one another. But Sexton said TARC ridership projections aren't dependent on Cornerstone data, so any eventual development along rapid transit lines would be a bonus if it increased ridership.

TARC officials take pains to point out that any benefits of rapid transit in Louisville will be seen 15 or 20 years from now. That makes some of the transit agency's predictions seem speculative, but Barker said any public investment that is implemented over many years requires that type of speculation. He is confident, however, that Louisville will ultimately be satisfied with the investment.

"I've joked with some friends that the opening of the system will be May 5, 2008, at noon," said Barker. "Following the ribbon-cutting will be a reception, and we're mailing out invitations next week. Of course, that's tongue in cheek, but we'll do the best we can to make it as exact as possible."