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.
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.
So if the homeowner already had the right of self defense without obligation to retreat even before the new law was passed, how is this a big conundrum for the judge?
But according to the law prof qutoed, KY never had a duty to retreat.
Sounds like the judge is miffed that he can't spin the case or just make stuff up that sounds like an "interpretation of the law" as he gives instructions to the jury.
There's not a single judge known to me, and I know many both personally and before whom I appear regularly, who could interpret the Ky. confusion any differently than the judge in question. What is there about ''due process of law'' that bothers you? Before a person can either be adversely subjected to or benefit from a statue it must be capable of clarity and that such a person must know that he is either criminally subject to it or protected by it. In neither instance is the Ky. statute possesed of that clarity and sufficient to make a person knowlegable of what it means when applied to him.
So self defense is an affirmative defense where the burden of proof still falls to the state. Is that about it?
This judge is intentionally ignorant. This law codifies the common law maxim that retreat is not required in ones own home.
The judge does not like the law so the judge says it is controversial. Sooooo big brother.
"In neither instance is the Ky. statute possesed of that clarity and sufficient to make a person knowlegable of what it means when applied to him."
How did that happen and, more important, how can it be rectified?
I don't know.
I don't think that "fear of his life" is required for it to be considered a self-defense shooting. However, there must be some evidence available, other than "two men, one dead"! Damage indicating forced entry, perhaps, or the dead man was armed. These would support the occupant's report of what happened.
That's why it's a question of fact, to me, rather than of law.
Good post - just what I was trying to say, only more clear!
What do you base that on? Do yo have the text of the statute? If so, kindly share it with us so we can decide for ourselves.
I've known a few judges myself and . . . I'll put it this way . . . a judge is just a another lawyer -- but with too much power.
Agreed on all points. I knew when I posted it some one would point that out but I'm just too lazy to type out "fear of bodily harm, theft, defense etc." :)
She forgot nebulous and well-financed.
All clear, then :-). I'm usually posting in haste, myself!
http://www.lrc.ky.gov/record/06RS/SB38.htm
Still researching.
Your statement is incorrect: As a general rule, the jury is responsible for determining whether the use of deadly force was reasonable under the factual circumstances, even if those circumstances are not in dispute. IMO, the judge made the legally correct decision.
ALL judges get the "black robe fever".
Judicial colleges DO teach them that they are the "god" of their courtroom. Remember MOST have criminal contempt powers.
Most judge KNOW they can get away with ANY misinterpritation of the law because VERY FEW cases go up on appeal. This is due to the cost, the need for bonds in civil cases, or the fact the person placed in jail ends the matter since they are financially destroyed.
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