What is really going on in this case before the Supreme Court involving the Attorney General?

A story ran this weekend under a headline suggesting the Attorney General’s power was threatened with “crippling,” depending on the outcome of a Kentucky Supreme Court case to be argued this Thursday. The story was really more of a sideways tickler about the issues that are before the Court, than a full analysis of what the Supreme Court will really  decide. In fact, at the end of the day, this case is more about what the legislature has done or will do (or refuse to do) in the future than any kind of real ultimatum about the power of the Attorney General.

The defendant who challenged the drug investigations conducted in Powell County did so under a claim that, by reading various statutes governing and establishing authority of the Attorney General, one simply could not find the authority to conduct a narcotics investigation in a county which had not “invited” the Attorney General’s presence. Therefore, says he, the court should dismiss a case against me which was investigated by employees of the AG’s office. The Circuit Court Judge in Powell County disagreed and allowed the indictment to stand, but two panels of the Court of Appeals disagreed with the analysis, if not the result.

We say “if not the result” because the contention on behalf of the AG has always been that there is a secondary reason for upholding this particular indictment, unrelated to the statutes empowering the Attorney General. And, in fact, the Court of Appeals left open the idea that the Attorney General may be right on that score, by “remanding” the case to Circuit Court for further analysis. The contention, specifically, was that the investigators in this particular case did not actually engage in conduct which was outside their authority– and, therefore, there may be no need to have the “bigger” issue decided regarding the statutes.

On the issue of these empowering statutes: these statutes are, it is fair to say, far from clear on that point. Over the history of that office, various terms of the legislature have seen fit to carry out little pet projects here and there, variously adding, subtracting and amending the Attorney General’s authority, based on the hot issue of that month or year. Often enough, the Attorney General himself was not even involved in these acts of legislative tinkering. So, does the AG’s authority simply collapse if the Supreme Court decides to read the statutes the same way five judges of the Court of Appeals have, and find that this authority is not there? Absolutely not: it means that the Attorney General simply has a legislative initiative to undertake, seeking to have the elected representatives in the General Assembly clearly and unmistakably grant him to authority he may now not have. Of course, that requires initiative and support in the legislature. Perhaps that could have been tried before it all came to this point.

In that sense the case is “big” because it may have more to do with how much power over individuals a state agency can claim for itself out of the (sometimes ambiguous) words used by the legislature, before that agency has to go back to the legislature and have it spelled out (and quite possibly be refused in that request).  Many citizens would answer “not one bit more than what is in black and white,” while others are willing to take a rosier view, willing to find powers that are “implied.”

KPL Welcomes Pakistani Attorney and Leading Woman, Sara Ali

The partners of Kahloon, Pasic & Lewis, join in welcoming Pakistani attorney, journalist and thinker, Sara Ali. Sara

Ali is an attorney based in Lahore and is working with the Research Society of International Law, an international law think-tank based in Pakistan. She has worked in the development sector prior to joining RSIL where she was actively engaged in human rights issues particularly women and gender issues. Her areas of research and interest are death penalty, water scarcity and water management, women rights and labor rights such as the rights of the domestic workers in Pakistan.

She has also written extensively in the leading newspapers of Pakistan including the Express Tribune and Daily Times and has a paper published on International Criminal Court exploring the importance of ICC in promoting global justice.

She is visiting the U.S and interning at the Kahloon, Pasic and Lewis Law Associates to understand and learn about the American legal system and application of the rule of law.


Does Defense Counsel Have a Duty to Inquire About Facebook Connections?


The Kentucky Supreme Court announced a decision in yet another case involving jury selection and the Facebook connections of jurors. Our avid readers will recall our discussion here about a homicide case reversed last fall when jurors failed to disclose their having “friended” the victim’s mother on Facebook. This time, in Jeffrey McGaha v. Commonwealth, the Court was not forgiving to the Defendant. McGaha’s murder conviction was affirmed, despite his complaint of having discovered, after trial, that one of the jurors who actually sat on his case was Facebook  friends with— once again!— the victim’s mother.  This time, it appears that defense counsel had received enough general truthful answers from the juror about having some relationship to the victim’s mother, that it was incumbent upon him or her to make the specific inquiry about Facebook.  Because counsel did not, conviction affirmed on this point. Editorial: I guess lawyers should be reading our blog and case updates, and would then know to ask that question, right? I’m sure that’s what was intended here.




The Kentucky Supreme Court’s criminal law theme for this spring is apparently the meaning of unanimous verdict. Most people think they know what “unanimous”  means, but ah: let some lawyers get involved! More seriously, the issue is really one of how a jury is instructed on the elements of a crime. Basically, if you see the word “or” in a jury instruction too many times, you may well be looking at a non-unanimous verdict. Kind of like this: “Americans were unanimous that EITHER Mitt Romney OR Barack Obama should be president.” Obviously, the word “unanimous” has almost no meaning when used like this. In the case of Commonwealth v. Deonte Simmons, the Kentucky Supreme Court reviewed a criminal trial which proceeded to verdict (and—you guessed it—a guilty verdict) with 11 jurors. “But,” said the Commonwealth, “his lawyer agreed to this.” That’s way too important a right, says the Court in reversing—we need to know that the Defendant personally waived that right.

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