Posted on 07/31/2006 9:30:57 AM PDT by kiriath_jearim
'Home intruder' law vague to judge
Refuses to dismiss murder charge
By Brandon Ortiz HERALD-LEADER STAFF WRITER
A Fayette judge struggled to make sense of Kentucky's new "home intruder" law yesterday, calling the National Rifle Association-backed legislation confusing, vague and poorly written.
"I'm not quite sure that the drafters had even a marginal knowledge of criminal law or Kentucky law," Circuit Judge Sheila Isaac said. "It is absolutely silent on the court's role."
Isaac rejected James Adam Clem's request to have his murder charges dismissed because of the recently enacted law, which grants immunity to homeowners who use deadly force to defend themselves from robbers or intruders.
The law says a person has the right to use lethal force if he has "reason to believe that an unlawful and forcible entry or unlawful and forcible act was occurring or had occurred." It also applies if a person is attacked in a public place "where he or she has a right to be."
Clem, 27, says he killed Keith Newberg, 25, in self-defense after Newberg allegedly attacked him upon entering Clem's apartment early in the morning of Aug. 9, 2004.
Isaac sided with prosecutors, who said that whether Newberg was an intruder or had committed a crime is a factual question that jurors must decide.
"To go into whether he is immune clearly requires fact-intensive decisions" that judges should not make, Isaac said.
Prosecutors around the state have expressed concerns about the law, which they say is difficult to interpret and raises numerous questions.
In an interview yesterday, University of Kentucky law professor Robert Lawson, widely considered the state's foremost expert on criminal law, sharply criticized the law. It was approved overwhelmingly by the General Assembly this spring, and it took effect this month.
"It is the worst legislation I have ever seen in 40 years," said Lawson, the principal drafter of Kentucky's penal code, which was adopted in 1975.
Supporters of Senate Bill 38, also called the castle doctrine, said that previous law required Kentuckians to retreat from robbers breaking into their home or car.
Not so, Lawson says: Unlike many states, Kentucky never had such an obligation.
When drafting the penal code, the General Assembly voted down such a requirement, he said.
A 1931 Kentucky Supreme Court decision, Gibson vs. Commonwealth, bluntly spells out the right of self-defense without retreat.
"It is the tradition that a Kentuckian never runs," the opinion states. "He does not have to."
May be state's 1st such case
Lawson said the home intruder law "is aimed at a problem that didn't exist" and will create "huge problems of interpretation."
The politically powerful NRA has convinced 15 states to pass castle-doctrine laws since 2005. The doctrine has its origins in English common law.
Supporters in the legislature, who acknowledge the NRA's influence in drafting the bill, say it is needed to protect homeowners from being sued or prosecuted for shooting intruders.
Yesterday, Judge Isaac and attorneys on both sides debated what the law means to Clem's case. It was the first time in Fayette County, and possibly the state, that the home intruder law has reached the courts.
The Kentucky Supreme Court has never ruled on the law, giving Isaac no precedent to follow. Because she is a circuit judge, her ruling does not create precedent, and it applies only to Clem's case.
Isaac said the law provides no guidance for how courts should apply the immunity provision, which bars police from even arresting somebody who defends himself.
It's not clear what the standard of proof is or how the burden of proof shifts, she said.
"We are all kind of treading on unknown water," she said.
Clem's trial starts Monday. Isaac said defense attorneys could refile their motion after prosecutors have presented their evidence.
Change in judges
Isaac is now presiding over the case. Judge Mary Noble recused herself this week.
A written order of recusal has not yet been entered. But Tucker Richardson, one of Clem's defense attorneys, contributed to Noble's Supreme Court campaign against Justice John Roach.
Noble previously has said she does not track who contributes to her campaign. Her campaign manager has said Noble learned of Richardson's donations only after the family of a victim in another case criticized her for not recusing herself in the trial of Keita Hayden, who was acquitted of murder charges.
NO mention in this article of any testimony other than that of the victim who acted in self defense.
That's true, to an extent. For instance, whether the dead man was genuinely an intruder, or was invited in and then killed by the occupant, is a question of fact that is extremely relevant.
Agreed. It would be interesting to see a the text of the law. There are a lot of poorly written statutes on the books. They are hard to interpret, and often make bad precedent when they are.
What a maroon.
The "Court" has no business in the law whatsoever; it's their to facilitate the rights of the accused and the offended parties, coupled with a JURY who determines the outcome based on the facts.
This Judge has the mis-conception that she is some sort of God or something, and only THE JUDGE can properly determine right and wrong..........
People seems at times that they don't have any basic rights that supposedly were guranteed in the Constitution.
Dear Sheila,
Ever hear of "a man's home is his castle"? He/she has a right to protect it including with the use of deadly force. Got it?
Funny. The perp ended up understanding the law quite clearly.
How is a sincere criminal, trying hard, going to get ahead in his profession if his victim fails to cooperate?
Almost all crime depends on the cooperation of the victim.
If the victim refuses his assigned role, the criminal is placed at a disadvantage, one so severe that it usually takes an understanding and compassionate judge to set right.
LAZARUS LONG
Not so, Lawson says: Unlike many states, Kentucky never had such an obligation.
If the Professor is correct, then why was James Adam Clem arrested and why is he now being prosecuted? The new law didn't create a requirement to arrest and prosecute folks defending their property.
Not a very informative article as to the facts of the case.
Unless I'm mistaken (and that's a real possibility) a judge presiding over a jury trial in a criminal case has the power to unilaterally declare a defendant not guilty or to dismiss the charges against said defendant due to what *he/she* believes to be insufficient evidence and has the power to do that at any point in the proceedings...even after a jury declares that defendant to be guilty.
I'll patient await any lawyer's post telling me that I'm full of beans.
Special interest legislation drafted by lobbyists and passed quickly by legislators anxious to appear fighting crime, or whatever the subject may be, is often the worst drafted, least precise and inarticulate mess that shows up in state and federal statues. When anyone schooled in statutory interpretation looks at a jumbled mess of words such as this it's easy to recognizes that it is unintelligable. The langusge of the Ky. statute is just that. Does the judge find immunity? His job is not as a fact finder unless a party waives a jury trial.
The law professor is an objective and learned observer whom I would trust to make such a conclusion vis-a-vis a kneejerk reaction.
And this report does not make that clear or that the shooter was in fear of his life.
This judge is refusing to apply the law. That makes her the 'activist'.
Do you happen to know the citation for this law? I'd like to take a look at it for myself.
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