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.”
Wednesday, November 19, 2003
Wednesday, October 15, 2003
The Republican: Jack Wood
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.
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.
The Independent: Gatewood Galbraith
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.
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.
Tuesday, September 16, 2003
Social Insecurity
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.
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.
Wednesday, September 10, 2003
Friendly Fanatics
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.”
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.”
Wednesday, August 20, 2003
Insight gives broadband users fair warning
By Caleb O. Brown
Snitch Staff Writer
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.
Wednesday, August 06, 2003
DEA, under pressure to reform itself, may soon shift focus again
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.”
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.”
Wednesday, July 09, 2003
Ravers face the music with new law
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.”
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.”
Tuesday, July 08, 2003
The Dudes Abide
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.
Tuesday, June 24, 2003
Rowling's Natural Order
By Caleb O. Brown
Snitch Staff Writer
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.
Wednesday, May 14, 2003
Courting Families
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.
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.
Wednesday, March 12, 2003
Behind Closed Doors
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.”
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.”
Wednesday, February 05, 2003
Megan's Flaw: Expanding Sex Offender Registries May Be Their Downfall
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.
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.
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