KPL’s own renowned employment law expert and partner Djenita Pasic was seen today discussing President Obama’s immigration reform proposal with WAVE3’s Scott Adkins. Pasic discussed the impact on the local economy already seen by immigrants, and the many benefits that could some with bringing our brothers and sisters out of the shadow economy that exists for so many. Pasic stressed that any immigration reform should rightly address criminal background checks and the like, but should be designed to be non-punitive to those who have made their home here, and contributed so much to the local economy already. We also note– and celebrate– the fact that our fine partner was, herself, an immigrant from war-torn Bosnia in the 1990’s, who has risen to one of Louisville’s finest attorneys. She knows well of that which she speaks!
William Ayers, former Louisville criminal defense lawyer whose Jefferson Circuit Court conviction for tax crimes was reversed by the Kentucky Court of Appeals in 2010, will now have that reversal reviewed by the Kentucky Supreme Court, at the request of the Commonwealth. The Kentucky Supreme Court granted today a “Motion for Discretionary Review,” meaning they will take up whether the Court of Appeals was correct in reversing Ayer’s conviction.
Ayers, who was tried for tax crimes in 2009 by Assistant Commonwealth’s Attorney Tom VaDeRostyne, was convicted before Judge Susan Gibson of five count of failure to file tax returns. Ayers claimed on appeal that the trial judge did not adequately protect him from the pitfalls of representing himself (Yes, you read that correctly). This would have involved the trial court conducting what is known as a “Faretta” hearing, at which the judge is to pointedly question any criminal defendant about whether they truly want to represent themselves, and essentially tell them that it is a bad idea. (We all know the Abraham Lincoln quote about that, don’t we?). The Court of Appeals ruled that, indeed, Ayers was entitled to such a hearing, and that the trial judge must be reversed for failing to conduct one. There is not an exception for practicing criminal defense attorneys. Perhaps there will be such an exception after the Supreme Court hears the case. Stay tuned.
Our friends at ACLU have filed a class action regarding mandatory detention policies on certain immigrants. Read about it here via the ACLU.
Thursday involved another major re-visit of the scope of the Padilla decision, by the Kentucky Supreme Court. But was this really a Padilla issue at all? We’re talking about whether a criminal defendant can set aside a conviction based on bad lawyer advice regarding certain “collateral” issues.
This time, the court issued three opinions, involving allegedly bad advice regarding parole eligibility and sex offender status. On parole eligibility, one David Stiger says that he was misinformed by trial counsel about his parole eligibility nine years ago when he pled guilty to Robbery, and should have his conviction set aside. Parole eligibility, argues Mr. Stiger, is just the same as immigration consequences were for Mr. Padilla, so if I prove my lawyer provided ineffective assistance and misadvised me, I should at least get what Mr. Padilla got (a new trial). It is not the same, says the Supreme Court, and in any event Mr. Stiger can’t prove that he would have done better at trial. Conviction affirmed. Same outcome for the Defendants Pridham and Cox on the issue of sex offender misadvice.
What is odd about these decisions is that there was not a single cite I can find of the U.S. Supreme Court’s most recent two decisions granting relief from guilty pleas, which were just decided in March (Cooper and Frye, here). Most agree these two decisions changed existing law on this topic—enough so that I taught a class on them in May, so that means something, doesn’t it? (See also, the cover of this month’s ABA magazine—I love it when I scoop the ABA). Not clear the outcome of these cases would be different, but odd nonetheless.
Attorneys Todd Lewis and Khalid Kahloon, of Louisville law firm Kahloon, Pasic & Lewis, will be presenting on Friday, October 11, 2012, to physicians with Kentucky’s child advocacy centers, on behalf of the Kentucky Association of Children’s Advocacy Centers. These physicians conduct the state’s examinations of victims of alleged child sex abuse. Lewis and Kahloon, whose practice partly involves the representation of physicians, hope to offer their nearly 30 years of trial experience to instruct these important physicians on the topic of courtroom testimony and cross examination.
In a “where are they now”? moment, the Kentucky Court of Appeals issued a sort of follow-up opinion last Friday regarding one Jose Padilla, a criminl defendant indicted in Hardin County, Kentucky, who has become somewhat famous locally and nationally in the last couple years as the subject of the U.S. Supreme Court’s Opinion in Padilla v. Kentucky (2010). Folks practicing immigration law and criminal law definitely need no reminder of the impact of Padilla: the ruling was that a criminal defendant is entitled to be warned by his attorney of the possible immigration consequences of a guilty plea. If he can show that he was not so warned, and it was what the law regards as “prejudicial,” he may be abe to set aside his conviction.
So, following the U.S. Supreme Court’s decision, Mr. Padilla’s case took a trip back to the Kentucky Supreme Court, then back to Hardin Circuit Court, who ruled that even if Mr. Padilla could show that his trial attorney did not warn him of immigration consequences, he suffered no prejudice, and therefore would not get a chance at a new trial. That ruling prompted an appeal to the Kentucky Court of Appeals, who ruled that Padilla did, indeed, suffer prejudice and vacated his conviction. Now, this only means that Padilla can now stand trial– and face a possible ten-year sentence rather than the five years in his original plea (or, indeed, receive an acquittal). Incidentally, the Court also pointed out that Mr. Padilla is a forty-year legal permanent resident of the U.S. who served in the U.S. military in the VietNam conflict– but could still face deportation under current rules.
This is curious from a human perspective, because it has courts involved in trying to understand the weight an immigrant may place upon avoiding deportation. Indeed, even some very very small criminal sentences may subject a person to possible deportation, and even when they have resided here almost their entire life. It is a possible consequence whose weight is probably unparalleled among possible secondary consequences of a conviction. As the Court quoted Padilla in its Opinion, it was like “putting a gun to his head.”
By the way: our blogs are not intended as legal advice for any individual case– just general information.
Bar members, please join us at the LBA Solo and Small Practice Section this Thursday September 27, 2012 from 11:00 to1:00 PM, where KPL’s Todd Lewis and Khalid Kahloon will present on cross-examination. Also presenting will be Brittany Blau on voir dire, and Aaron Murphy on presenting medical evidence. See LBA “upcoming events.”
For those who observe historic anniversaries, you will note that seven years ago today, Hurricane Katrina crashed ashore in the gulf, changing and ending hundreds of thousands of lives. One small story, lost in many ways in the media focus on places like the Superdome, was how the elderly and disabled were assisted—or how efforts to do so failed. It’s a good time to ask: is Kentucky fully prepared to assist or evacuate our vulnerable residents in the event of a natural disaster? And look: before you decide that we in the Bluegrass State do not have to worry about a hurricane (probably true), did you know that Kentucky is the 8th most likely state to experience a major natural disaster—ranking even higher than Louisiana?
Huffingtonpost noted today a story, as yet another hurricane approaches the Gulf shore, of a nursing home evacuation and its problems. Clearly, the Gulf Shore area has learned a great deal in those seven years. It looks a great deal better than stories like this one from the Houston Chronicle, discussing how only one third of nursing home residents were evacuated at all during the approach of Katrina in 2005; or this horrific story from USA Today, discussing one particular nursing home’s 35 deaths during Katrina, and the ensuing criminal indictments.
Kentucky has both an emergency management system, and a Cabinet whose job is, theoretically, the protection of residents of long-term care facilities. A recent report of the Department of Health and Human Services has indicated, however, that disaster planning for nursing homes is inadequate, and in many ways has not gotten better since Katrina. A New York Times story from May of this year discussed an alarming finding that, of twenty-four nursing homes surveyed, 22 did not have a plan for handling medications and medical records in the event of disaster.
What can you do, as the family member or caretaker for a loved one residing in a long-term care facility? I am indebted to the same New York Times story for pointing out a helpful list of questions to ask about emergency preparedness and nursing homes, which you can read here.
We all remember the devastation of this spring’s tornadoes in Southern Indiana and Eastern Kentucky, especially Morgan County. If there is any good to come of this horrible event, perhaps it is to remind us that our fine state is vulnerable to Katrina-type disasters, to remember to watch out for our vulnerable citizens and be aware of what is—or is not—being done to protect them.
Authorities have dismissed the last pending charges against American Express financial adviser Troy Rufra, who in an apparent case of mistaken identity faced as many as 80 years in prison for allegedly robbing four banks.
After a prosecutor recommended dismissing the cases, a Jefferson County grand jury on Thursday returned no indictment against Rufra for three robberies in St. Matthews. The chief deputy prosecutor in Clark County, Ind., got a judge to dismiss the fourth robbery charge earlier this month.
Rufra, 30, who was suspended from his job at an American Express franchise in September but was reinstated this week, said: ”I feel incredible. It looks like some prayers got answered and I got an early Christmas gift.”