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'Home intruder' law vague to judge
Lexington Herald-Leader (Kentucky) ^ | 7/27/06 | Brandon Ortiz

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.


TOPICS: Constitution/Conservatism; Crime/Corruption; Government; US: Kentucky
KEYWORDS: badjudge; banglist
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To: kiriath_jearim
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."

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.

The law, as stated above, clearly says that the homeowner, not a jury, is to decide if a crime was being committed. Furthermore, according to the article, Issac herself admitted the law bars the police from even arresting Clem. So, why was he arrested, & why didn't Issac throw out the case, as she should.

Could it be the Issac & the prosecutor refuse to uphold the law as it is written? I suspect they prefer those 500 page laws, chock full of loopholes, so they can administer "justice" as they see it.

What was it Lincoln said? "...of the lawyers, by the lawyers, for the lawyers".
21 posted on 07/31/2006 10:10:48 AM PDT by Mister Da (The mark of a wise man is not what he knows, but what he knows he doesn't know!)
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To: kiriath_jearim
"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.

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?

22 posted on 07/31/2006 10:14:34 AM PDT by Still Thinking (Quis custodiet ipsos custodes?)
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To: Gay State Conservative

But according to the law prof qutoed, KY never had a duty to retreat.


23 posted on 07/31/2006 10:17:14 AM PDT by Still Thinking (Quis custodiet ipsos custodes?)
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To: kiriath_jearim

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.


24 posted on 07/31/2006 10:20:40 AM PDT by jiggyboy (Ten per cent of poll respondents are either lying or insane)
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To: BenLurkin

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.


25 posted on 07/31/2006 10:21:05 AM PDT by middie
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To: BenLurkin

So self defense is an affirmative defense where the burden of proof still falls to the state. Is that about it?


26 posted on 07/31/2006 10:21:35 AM PDT by Still Thinking (Quis custodiet ipsos custodes?)
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To: kiriath_jearim

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.


27 posted on 07/31/2006 10:23:57 AM PDT by longtermmemmory (VOTE! http://www.senate.gov and http://www.house.gov)
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To: kiriath_jearim
The judge would know what a home intruder was if she woke up one night with a large figure looming over then end of her bed.
28 posted on 07/31/2006 10:28:37 AM PDT by Beckwith (The dhimmicrats and liberal media have chosen sides and they've sided with the Jihadists.)
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To: middie

"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?


29 posted on 07/31/2006 10:29:46 AM PDT by Panzerlied ("We shall never surrender!")
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To: Gay State Conservative

I don't know.


30 posted on 07/31/2006 10:33:10 AM PDT by Tax-chick (I've always wanted to be 40 ... and it's as good as I anticipated!)
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To: Hazcat
And this report does not make that clear or that the shooter was in fear of his life.

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.

31 posted on 07/31/2006 10:36:38 AM PDT by Tax-chick (I've always wanted to be 40 ... and it's as good as I anticipated!)
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To: Smogger
Not a very informative article as to the facts of the case.

I think that's the real issue. People on this forum are arguing other topics, but what are the facts?

Scenario 1 (assumed by most posters to this board): Intruder breaks into house and gets shot. End of argument, and the judge should let the innocent self-defender off.

Scenario 2: Two friends, well known to each other, sit around drinking in an apartment belonging to one of them. They have an argument, and the apartment dweller shoots the other guy, then declares him to have been an intruder.

I know which one I think is more likely, but the whole point is that determining which of those two (or other) scenarios really happened is the job of the jury, not the judge. However, I don't find the law as written all that unclear, so I'm siding with the common sense interpretation once the facts are established.
32 posted on 07/31/2006 10:37:21 AM PDT by Gorjus
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To: Gorjus

Good post - just what I was trying to say, only more clear!


33 posted on 07/31/2006 10:38:25 AM PDT by Tax-chick (I've always wanted to be 40 ... and it's as good as I anticipated!)
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To: middie
"There's not a single judge known to me, ... who could interpret the Ky. confusion any differently than the judge in question."

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.

34 posted on 07/31/2006 10:38:39 AM PDT by BenLurkin ("The entire remedy is with the people." - W. H. Harrison)
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To: Tax-chick
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.

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." :)

35 posted on 07/31/2006 10:39:25 AM PDT by Hazcat
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To: kiriath_jearim
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.

She forgot nebulous and well-financed.

36 posted on 07/31/2006 10:40:17 AM PDT by hschliemann
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To: Hazcat

All clear, then :-). I'm usually posting in haste, myself!


37 posted on 07/31/2006 10:40:29 AM PDT by Tax-chick (I've always wanted to be 40 ... and it's as good as I anticipated!)
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To: Panzerlied

http://www.lrc.ky.gov/record/06RS/SB38.htm

Still researching.


38 posted on 07/31/2006 10:46:33 AM PDT by BenLurkin ("The entire remedy is with the people." - W. H. Harrison)
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To: BenLurkin
BTW, a factual question need be submitted to a jury ONLY when there is a factual dispute.

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.

39 posted on 07/31/2006 10:47:17 AM PDT by Labyrinthos
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To: traditional1

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.


40 posted on 07/31/2006 10:47:45 AM PDT by longtermmemmory (VOTE! http://www.senate.gov and http://www.house.gov)
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