... and Justice for All

Does presence of a gun inside a vehicle mean that a passenger possessed it?

Does the presence of a gun inside a vehicle mean that a passenger possessed it? No, not without more the Sixth Circuit has ruled in United States v. Wilson (December 6, 2022).

The defendant pleaded guilty to possessing methamphetamine with intent to distribute. The district court applied a two-level enhancement for possession of a firearm during the offense under section 2D1.1(b)(1) of the sentencing guidelines. This was a big mistake and was vacated by the appeals court. 

The defendant was involved in two drug-related incidents. In the first, he was identified as the driver of a car that fled and police later recovered drugs and a handgun from the car. Almost four months later, the defendant was seen exiting the backseat of a vehicle, a Ford F-150, on the driver's side. Meth and other evidence was found on his person. Police found a revolver under the front passenger seat, a handgun in the back pocket of the front passenger seat and a rifle underneath the rear passenger seat, although it was not visible "without first lifting the seat." 

The Sixth Circuit ruled that the district judge clearly erred in finding that the defendant constructively possessed any of the three firearms recovered from the Ford F-150. First, "something more than proximity is required to show constructive possession." Second, a "defendant's mere presence in a car where a gun is found and proximity to a gun are insufficient proof of constructive possession," a quote taken from an earlier Sixth Circuit decision United States v. Newsom, 452 F.3d 593, 609 (6th Cir. 2006). Third, the government "did not present evidence that the rifle was visible or that [the defendant] knew it was under the seat." Finally, there was no other incriminating evidence such as a connection with a gun, proof of motive, a gesture implying control, evasive conduct, or a statement indicating involvement in an enterprise or a statement of ownership is needed in combination with proximity to show constructive possession. 

Circuit Judge John Nalbandian dissented and went far, far out of his way to conjure up some basis to prop up the district court's clearly erroneous finding. One was that even though the district court did not find and the government did not argue in either the district court or to the Sixth Circuit, the enhancement could still be supported by the gun recovered in the first drug-related incident. The main rationale that Judge Nalbandian offered was that the defendant had some ownership interests in the vehicle. That, of course, cut against the defendant's possession of the gun the district court erroneously found and the government argued he possessed involved in the second incident. This "heads I win, tails you lose" logic cannot stand, the majority responded in a pithy footnote, "[e]ither ownership and sole occupancy of a vehicle matters for constructive possession, or it does not." 

Heads the government wins, tails the defendant loses pretty much sums up federal criminal law nowadays. Rare is the instance where it is called out and rejected. Circuit Judge Karen Nelson Moore joined by Circuit Judge Eric Clay deserve special mention for doing so. 

Robert L. Abell
www.RobertAbellLaw.com

"Safety-valve" relief; a Circuit-split on the meaning of "and"

The First Step Act of 2018 amended 18 U.S.C. § 3553(f)(1) to broaden substantially the eligibility criteria for “safety valve” relief. Previously, a defendant was ineligible for “safety valve” relief if he or she had more than 1 criminal history points. The First Step Act expanded the eligibility criteria and made a defendant eligible for safety valve relief if he had (A) “more than 4 criminal history points” excluding those resulting from a 1-point offense; (B) a prior 3-point offense; and (C) a prior 2-point violent offense.

A circuit split has developed centered upon the meaning of “and” in the amended statute. In other words, the question is whether, as the Sixth Circuit has described in United States v. Haynes, No. 22-5132 (6^th Cir., December 19, 2022), “whether … this provision requires the defendant to show that he has none of the criminal history described in subsections (A) – (C); or whether instead … the defendant must show only that he lacks the criminal history described in any one of those subsections. The answer to that question, everyone agrees, depends on the meaning of the word “and” as used in § 3553(f)(1).”

The Sixth Circuit ruled in Haynes that “and” doesn’t mean “and” but means “or,” as described in the dissenting opinion of Judge Richard Griffin, a jurist not known for seeing anything in favor of a criminal defendant. The Sixth Circuit joins the Eighth Circuit, United States v. Pulsifer, 39 F.4^th 1018 (8^th Cir. 2022), Seventh Circuit, United States v. Pace, 48 F.4^th 741 (7^th Cir. 2022), and, of course, the Fifth Circuit, United States v. Palomares, 52 F.4th 640 (5th Cir. 2022), in that holding. 

On the opposite side of the fence and holding that “and” means “and” is the en banc Eleventh Circuit, United States v. Garcon, __ F.4^th ___ (11^th Cir., Dec. 6, 2022)(en banc), and the Ninth Circuit, United States v. Lopez, 998 F.3d 431 (9th Cir. 2021). The en banc Eleventh Circuit, in an opinion authored by Tulane Law School grad and Chief Judge William J. Pryor, described the question presented as “whether, in the First Step Act, the word ‘and’ means ‘and.’”

This issue, given this circuit split, seems destined for the Supreme Court, where the plain language reading followed by the Eleventh and Ninth Circuits will likely carry the day.

Robert L. Abell
www.RobertAbellLaw.com

Defining Hearsay: The truth of “the matter asserted” means “the matter asserted by the statement,” not the matter asserted by the party offering the testimony

The defendant was charged after having been filmed by an informant selling methamphetamine. The informant, who is identified as “B.B.”, passed away before trial. Nevertheless, the government played B.B.’s videos of the transactions to the jury, although recordings of statements from B.B. to law enforcement personnel were excluded. The defendant was found guilty and challenged on appeal the admission of the redacted videotapes, arguing that they were hearsay, and their admission violated his rights under the Confrontation Clause.

The Sixth Circuit rejected this contention and affirmed the convictions in United States v. Harrison, No. 21-6146 (6^th Circuit, December 1, 2022).

When a witness cannot testify at trial and has not been cross-examined, the confrontation clause prohibits entry of the witness’s statements that are: (1) testimonial, and (2) hearsay. United States v. Gibbs, 506 F.3d 479, 486 (6^th Cir. 2007). A statement is testimonial when its purpose is to be used against the defendant.

Federal Rule of Evidence 801(c) defines hearsay to be a statement “offered in evidence to prove the truth of the matter asserted.” The key, however, as explained by the Sixth Circuit is that “the matter asserted” refers to or means “the matter asserted by the statement, not the matter asserted by the government. United States v. King, 865 F.3d 848, 850-51 (6^th Cir 2017).

This is a good way to understand whether or not a statement is in fact “hearsay”: is the statement being offered toward proving its truth? If the statement is merely being offered in support of the position of the party offering it but not because it is true or not, the statement is not hearsay.

Robert L. Abell
www.RobertAbellLaw.com

"Our law applies to all, without regard to numbers, wealth or rank" says Eleventh Circuit ruling against former President Trump

The Eleventh Circuit in Donald J. Trump v. United States, the government's appeal from the ruling by district judge Aileen Cannon to appoint a special master to review the government's ongoing investigation related to the former president. The Court went through the relevant factors for such a ruling, found them all wanting and came to this conclusion:

Only one possible justification for equitable jurisdiction remains: that Plaintiff is a former President of the United States. It is indeed extraordinary for a warrant to be executed at the home of a former president -- but not in a way that affects our legal analysis or otherwise gives the judiciary license to interfere in an ongoing investigation. ... To create a special exception here would defy our Nation's foundational principle that our law applies "to all, without regard to numbers, wealth, or rank." State of Georgia v. Brailsford, 3 U.S. (3 Dall.) 1, 4 (1794).

And so a very ordinary ruling by the appellate court corrects a very big error by the district judge. 

Robert L. Abell
www.RobertAbellLaw.com

When may a witness assert his Fifth Amendment privilege against self-incrimination?

Here's what the Supreme Court said in 1951 in Hoffman v. United States, 341 U.S. 479, 485-87:

 

The Fifth Amendment declares in part that ‘No person * * * shall be compelled in any Criminal Case to be a witness *486 against himself’. This guarantee against testimonial compulsion, like other provisions of the Bill of Rights, ‘was added to the original Constitution in the conviction that too high a price may be paid even for the unhampered enforcement of the criminal law and that, in its attainment, other social objects of a free society should not be sacrificed.’ Feldman v. United States, 1944, 322 U.S. 487, 489, 64 S.Ct. 1082, 1083, 88 L.Ed. 1408. This provision of the Amendment must be accorded liberal construction in favor of the right it was intended to secure. Counselman v. Hitchcock, 1892, 142 U.S. 547, 562, 12 S.Ct. 195, 197, 35 L.Ed. 1110; Arndstein v. McCarthy, 1920, 254 U.S. 71, 72—73, 41 S.Ct. 26, 65 L.Ed. 138.

The privilege afforded not only extends to answers that would in themselves support a conviction under a federal criminal statute but likewise embraces those which would furnish a link in the chain of evidence needed to prosecute the claimant for a federal crime. (Patricia) Blau v. United States, 1950, 340 U.S. 159, 71 S.Ct. 223. But this protection must be confined to instances where the witness has reasonable cause to apprehend danger from a direct answer. Mason v. United States, 1917, 244 U.S. 362, 365, 37 S.Ct. 621, 622, 61 L.Ed. 1198, and cases cited. The witness is not exonerated from answering merely because he declares that in so doing he would incriminate himself—his say-so does not of itself establish the hazard of incrimination. It is for the court to say whether his silence is justified, Rogers v. United States, 1951, 340 U.S. 367, 71 S.Ct. 438, and to require him to answer if ‘it clearly appears to the court that he is mistaken.’ Temple v. Commonwealth, 1880, 75 Va. 892, 899. However, if the witness, upon interposing his claim, were required to prove the hazard in the sense in which a claim is usually required to be established in court, he would be compelled to surrender the very protection which the privilege is designed to guarantee. To sustain the privilege, it need only be evident from the implications of the question, in the setting in which it is asked, *487 that a responsive answer to the question or an explanation of why it cannot be answered might be dangerous because injurious disclosure could result. The trial judge in appraising the claim ‘must be governed as much by his personal perception of the peculiarities of the case as by the facts actually in evidence.’ See Taft, J., in Ex parte Irvine, C.C.S.D.Ohio, 1896, 74 F. 954, 960.

The witness must have reasonable cause to believe that his answer will incriminate him or reasonable cause to believe that his answer will provide a link to evidence that will incriminate him. In other words, Donald Trump has to have reasonable cause to believe he can directly or indirectly incriminate himself by answering questions.

 

Robert L. Abell
www.RobertAbellLaw.com

$4000 Fine Imposed on Indigent Defendant Affirmed by Sixth Circuit

The Sixth Circuit has upheld a fine of $4000 imposed on an indigent defendant. United States v. Godoy-Valles. The defendant, who pleaded guilty to illegally re-entering the United States after being deported previously based on a felony conviction, was also sentenced to 30 months in federal prison. 

Congratulations to Sixth Circuit Judges Bernice Donald, John Bush and John Nalbandian for rising in the federal judiciary to adjudicate cases with $4000 in issue. 

We note also this finding by the Brennan Center:

A wealth of evid­ence has already shown that this system works against the goal of rehab­il­it­a­tion and creates a major barrier to people reen­ter­ing soci­ety after a convic­tion.

And so it goes.

Robert L. Abell
www.RobertAbellLaw.com

Trump, John Eastman and the Crime-Fraud Exception to the Attorney-Client Privilege

The attorney-client privilege is a vital cornerstone of American law. It is founded on the notion that attorney-client communications must be and remain confidential in almost all circumstances, so as to encourage the client to be truthful and transparent to the attorney so that the client might get the best legal advice. One limited exception, however, is where the apparent purpose of the attorney-client communications is to plan or commit a crime; this is known as the crime-fraud exception to the attorney-client privilege. In a thorough, well-reasoned opinion, a federal district judge has ruled that the crime-fraud exception applied to at least some of the attorney-client communications between former President Donald Trump and John Eastman, an attorney and law professor engaged in what even Eastman admitted was a scheme thoroughly unsupported by any valid legal argument or position to obstruct the electoral certification that Joe Biden won the 2020 presidential election. The case is John Eastman v. Bennie G. Thompson, Select Committee to Investigate the January 6 Attack on the U.S. Capitol.

John Eastman is a law professor at Chapman University in California and somehow or another became engaged with former Trump and his efforts to overturn the results of the 2020 presidential election. The suit was an effort by Eastman to block the House of Representatives Select Committee investigating the January 6, 2021, attack on the US Capitol from obtaining emails sent or received by Eastman on his University email account. This particular ruling concerned only 111 documents, all of which were apparently generated between January 4 – 7, 2021.

The court’s opinion includes significant discussion of factual history. It portrays former President Donald Trump as attempting unsuccessfully to first bully the Department of Justice into taking some kind of action to overturn the election results. The court’s opinion describes one of those efforts on January 3, 2021, the day after Trump had telephoned Georgia Secretary of State Brad Raffensberger and urged him “to find 11,780 votes” as follows:

The next day, President Trump attempted to elevate Jeffrey Clark to Acting Attorney General, based on Mr. Clark statements that he would write a letter to contested states saying that the election may have been stolen and urging them to decertify electors. The White House Counsel described Mr. Clark’s proposed letter as a “murder-suicide pact” that would “damage everyone who touches it” and commented “we should have nothing to do with that letter.” President Trump eventually did not promote Mr. Clark after multiple high-ranking members of the Department of Justice threatened mass resignations that would leave the department a “graveyard.”

This comes from sworn deposition testimony by Jeffrey Rosen, the actual Acting Attorney General, and Richard Donoghue, the Acting Deputy Attorney General.

            The same day, January 3, 2021, that Trump abandoned his plan to elevate Jeffrey Clark, Eastman released and later disclosed to the media a purported legal memorandum that the court described as follows:

            On January 3, 2021, Dr. Eastman drafted a six-page memo expanding on his plan and analysis, which he later disclosed to the media. This memo “war gam[ed]” for potential scenarios for January 6, only some of which would lead to President Trump winning reelection. Claiming that “[t]he stakes could not be higher,” Dr. Eastman concludes his memo stating that his plan is “BOLD, Certainly. But this Election was Stolen by a strategic Democrat plan to systematically flout existing election laws for partisan advantage; we’re no longer playing by Queensbury Rules.”

            The next day, January 4, 2021, having abandoned the plan to elevate Jeffrey Clark and Eastman having generated his “war memo,” although it is doubtful that Trump had read it or ever read it, Trump called Vice President Mike Pence to a meeting and tried to bully him to obstruct certification of the electoral count scheduled for January 6. The court describes as follows:

            On January 4, President Trump and Dr. Eastman invited Vice President Pence, the Vice President’s counsel Greg Jacob, and the Vice President’s Chief of Staff Mark Short to the Oval Office to discuss Dr. Eastman’s memo. Dr. Eastman presented only two courses of action for the Vice President on January 6: to reject electors or delay the count. During that meeting, Vice President Pence consistently held that he did not possess the authority to carry out Dr. Eastman’s proposal.

The source of this information is the sworn deposition testimony of Greg Jacob, the Vice President’s lawyer.

Another meeting occurred the following day, January 5, 2021, this one attended by Eastman, Jacob and Short. The court recites as follows:

The Vice President’s counsel and Chief of Staff were then directed to meet separately with Dr. Eastman the next day to review materials in support of his plan. Dr. Eastman opened the meeting on January 5 bluntly: “I’m here asking you to reject the electors.” Vice President’s counsel Greg Jacob and Dr. Eastman spent the majority of the meeting in a Socratic debate on the merits of the memo’s legal arguments. Over the course of their discussion, Dr. Eastman’s focus pivoted from requesting Vice President Pence reject the electors to asking him to delay the count, which he presented as more “palatable.” Ultimately, Dr. Eastman conceded that his argument was contrary to consistent historical practice, would likely be unanimously rejected by the Supreme Court, and violated the Electoral Count Act on four separate grounds.

This description comes from sworn deposition testimony of the Vice President’s counsel, Greg Jacob. It sounds very much like a concession by Eastman that his plan had no legal validity or merit and that, therefore, perhaps the most “palatable” course for the Vice President to take so as to not outright violate the law would be to delay.

Apparently seeing that the efforts had not brought Pence around, Trump resorted to public bullying and attempted coercion the next day, January 6, 2021. The court recites:

Despite receiving pushback, President Trump and Dr. Eastman continued to urge Vice President Pence to carry out the plan. At 1:00 a.m. on January 6, President Trump tweeted, “If Vice President @ Mike Pence comes through for us, we will win the Presidency … Mike can send it back!” At 8:17 a.m., the President tweeted again, “States want to correct their votes … All Mike Pence has to do is send them back to the states, AND WE WIN. Do it Mike, this is a time for extreme courage!”

Following his tweets, President Trump placed two calls to Vice President Pence directly. After not being able to connect with the Vice President around 9:00 a.m., they spoke at approximately 11:20 a.m. Vice President Pence’s National Security Advisor General Keith Kellogg, Jr. was present and described President Trump as berating the Vice President for “not [being] tough enough to make the call” to delay or reject electoral votes.

Not long after this, both Eastman and Trump spoke to the crowd assembled around the White House. Both told the crowd that Pence had the legal authority to reject the electors and President Trump incited and urged the crowd to go down to the Capitol building and do something to make Pence come around. The court quotes Trump as follows:

Now, it is up to Congress to confront this egregious assault on our democracy. And after this, we’re going to walk down, and I’ll be there with you, were going to walk down, were going to walk down … [W]e’re going to try and give our Republicans, the weak ones because the strong ones don’t need any of our help. We're going to try and give them the kind of pride and boldness that they need to take back our country. So let’s walk down Pennsylvania Avenue.

Trump, as we know, was successful in inciting crowd to storm the Capitol building and watched it unfolding on television with the rest of the nation. He was unabashed, as the court noted:

Even as the rioters continued to break into the Capitol, President Trump tweeted at 2:24 pm: “Mike Pence didn’t have the courage to do what should have been done to protect our Country and our Constitution, giving States a chance to certify a corrected set of facts, not the fraudulent or inaccurate ones which they were asked to previously certify. USA demands the truth.”

During the riot, Greg Jacob, the Vice President’s counsel, finding himself and the other public officials endangered by the attacking mob emailed Eastman as follows:

“… thanks to your bullshit, we are now under siege.”

The court noted that Eastman had asserted his Fifth Amendment privilege against self-incrimination against producing any documents requested by the Select Committee and had asserted his Fifth Amendment privilege 146 times during his deposition.

As to application of the crime-fraud exception, the court considered whether President Trump and lawyer Eastman appeared to have committed three offenses: (1 obstruction of an official proceeding – Congress’ certification of the electoral votes on January 6, 2021 – in violation of 18 U.S.C. § 1512(c)(2); (2) a conspiracy to defraud the United States by interfering with the election certification process in violation of 18 USC § 371; and, (3) common law fraud in connection with the efforts of the president and his campaign to overturn the 2020 election results. The first two are the most convincing of these and the most important, since they are federal criminal statutes.

The key to the court’s analysis of the apparent 1512 violation is the analysis of “corrupt intent.” 1512 isn’t a strict liability offense; in other words, President Trump had to likely know “that the plan to disrupt the electoral Count was wrongful [.]” The court concluded this evidence was present based on the absence of any legal or factual justification or basis for the plan stating as follows:

President Trump and Dr. Eastman justified the plan with allegations of election fraud – but President Trump likely knew the justification was baseless, and therefore that the entire plan was unlawful. Although Dr. Eastman argues that President Trump was advised several state elections were fraudulent, the Select Committee points to numerous executive branch officials who publicly stated and privately stressed to President Trump that there was no evidence of fraud. By early January, more than 60 courts dismissed cases alleging fraud due to lack of standing or lack of evidence, noting that they made “strained legal arguments without merit and speculated of accusations” and that “there is no evidence to support accusations of voter fraud.” President Trump’s repeated pleas for Georgia Secretary of State Raffensberger clearly demonstrate that his justification was not to investigate fraud, but to win the election: “So what are we going to do here, folks? I only need 11,000 votes. Fellas, I need 11,000 votes. Give me a break.” Taken together, this evidence demonstrates that President Trump likely knew the electoral count plan had no factual justification.

The plan not only lacked factual basis but also legal justification. Dr. Eastman’s memo noted that the plan was “BOLD, Certainly.” The memo declared Dr. Eastman’s intent to step outside the bounds of normal legal practice: “we’re no longer playing by Queensbury Rules.” In addition, Vice President Pence “very consistent[ly]” made clear to President Trump that the plan was unlawful, refusing “many times” to unilaterally reject electors or return them to the states. In the meeting in the Oval Office two days before January 6, Vice President Pence stress his “immediate instinct [] that there is no way that one person could be entrusted by the Framers to exercise that authority.”

The court also pointedly rejected the argument that any good faith belief regarding the merits or validity of Eastman’s legal theory or belief in the unconstitutionality of the Electoral Count Act excused the obstruction:

Disagreeing with the law entitled President Trump to seek a remedy in court, not to disrupt a constitutionally-mandated process. And President Trump new how to pursue election claims in court – after filing and losing more than sixty suits, this plan was a last-ditch attempt to secure the Presidency by any means.

On much the same grounds, the court concluded there was an apparent violation of 18 U.S.C. § 371.

Additional coverage found here: Federal Judge Finds Trump Most Likely Committed Crimes Over 2020 Election; Trump "Likely" Committed Crimes Trying to Stay in Power, Judge Says in Record Dispute. 

Robert L. Abell
www.RobertAbellLaw.com

 

Does a hand, confined in a bag, amount to brandishing or possessing a dangerous weapon? The Sixth Circuit ignores plain statutory language and holds that it does.

Section 2B3.1(b)(2) of the United States Sentencing Guidelines imposes a three-level enhancement if a “dangerous weapon was brandished or possessed” during a bank robbery. But what if there is no weapon? What if the conduct amounts only to placing a hand into a shoulder bag in a manner that led a bank teller to believe that the robber was about to pull a gun? Doesn’t matter, as the Sixth Circuit is held in United States v. Tate that a hand in a bag is a “dangerous weapon.”

The defendant in Tate entered a bank with “an opaque shoulder bag across his body,” handed the teller a note demanding money and threatening harm before placing “his right hand into a shoulder bag in a manner that led the teller to believe the robber was about to pull out a gun.” There was no gun; there was only a hand, and so the question was “whether one’s hand, confined in a bag, amounts to a ‘dangerous weapon [] brandished or possessed’ during [a] bank robbery.”

The sentencing guidelines do not include a definition of “dangerous weapon.” Instead, definition of the term is provided by commentary stating that the term “dangerous weapon” means what a dangerous weapon actually is, “an instrument capable of inflicting death or serious bodily injury” and also something that is not “an instrument capable of inflicting death or serious bodily injury” but looks like it could be, that is, something that “closely resembles” an actual dangerous weapon. U.S.S.G. § 1B1.1 cmt. n.1(E); § 2B3.1 cmt. n.2.

The Sixth Circuit has recently held in two different cases, one sitting en banc, that commentary to the sentencing guidelines may not be used to expand the scope of terms used in the guidelines. United States v. Havis, 927 F.3d 382 (6^th Cir. 2019)(en banc), and, United States v. Riccardi, 989 F.3d 476 (6^th Cir. 2021). The rationale for these decisions being that the sentencing commission is the equivalent of an administrative agency and lacks the power to make laws or expand laws through use of commentary, since Congress does not review commentary. That seems to be exactly what is happening when the term “dangerous weapon” is construed to include something that can actually cause harm and something that merely resembles closely something that could cause harm. Nevertheless, the Sixth Circuit majority ruled that the Supreme Court holding in McLaughlin v. United States, 476 U.S. 16 (1986), that the term “dangerous weapon” extended to the use of an unloaded gun during the robbery control the issue and the sentencing commission had merely followed this lead. So, an actual but unloaded gun is the equivalent of a mere hand? Not something the prototypical “ordinary English speaker” would think possibly true, but, in the end, what does that really mean?

Tate, most obviously, is a decision intended to limit the scope of Havis. It also errs in disregarding the directives in 18 U.S.C. § 994 that the sentencing guidelines are to be consistent with “all pertinent provisions of any Federal statute,” 18 U.S.C. § 994(a), and “all pertinent provisions of title 18, United States Code.” The error being that “dangerous weapon” is defined in title 18 of the United States Code at § 930(g)(2) as follows: “a weapon, device, instrument, material, or substance, animate or inanimate, that is used for, or is readily capable of, causing death or serious bodily injury, except that such term does not include a pocket knife with a blade of less than 2 ½ inches in length." Title 18 of the United States Code has spoken to the question of whether a “dangerous weapon” can mean also something that merely resembles one or even someone’s hand; the Sixth Circuit has ignored this express statutory definition and its analysis is incorrect and flawed.

Robert L. Abell
www.RobertAbellLaw.com

"and the ladder of law has no top and no bottom..."

Judges sometimes do not allow a fair hearing and do not fairly consider the arguments of the parties' as shown in this colloquy reported by the Kentucky Court of Appeals:

During the hearing before the trial court, counsel for Appellees argued extensively. When counsel for [appellant] stated that he had not had an opportunity to make his argument, the following discussion ensued:

Counsel: I have an argument to make and I've not been able to make it. I know you need to leave, but ...

Court: I've heard-I understand the argument. Okay?

Counsel: But I haven't made it, Judge.

 

And so it goes.

 

Robert L. Abell
www.RobertAbellLaw.com

University of Kentucky called on its lawlessness: "statutory obligations that were ignored or minimized by the University at every step in this case"

Slamming the University of Kentucky for repeated and prolonged stonewalling and evasion of Kentucky's Open Records Act, the Kentucky Supreme Court has sought to invigorate the Open Records Act and pointedly rejected the University's overly broad reading of FERPA. The decision came today in University of Kentucky v. Kernel Press.

Read More here: University Ignored Statutory Obligations at Every Step. 

Robert L. Abell
www.RobertAbellLaw.com