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.
Liberal judges strike again. Are you a member of the NRA?
"The law, as stated above, clearly says that the homeowner, not a jury, is to decide if a crime was being committed."
So let's say I invite you over to my house, then when you step across the threshold, I shoot you dead, then claim you were breaking in.
In your view, I get to decide if a crime is being committed by you. In fact, you claim I can't even be arrested.
See any problems with that?
In criminal law, the judge decides matters of law. The jury decides matters of fact.
In this case, the shooter killed someone. That constitutes the crime of 'murder' or 'homicide', if done intentionally, or manslaughter (if the intent was not to kill).
Now under the new law, the shooter can claim the defense of self-defense. Like any other defense, it is the jury's right and duty to decide if the accused is guilty or not.
One part of the law does say as follows:
"(2) A law enforcement agency may use standard procedures for investigating the use of force as described in subsection (1) of this section, but the agency may not arrest the person for using force unless it determines that there is probable cause that the force that was used was unlawful."
So you can indeed be arrested if the agency thinks there is probable cause you were not really defending your 'castle'.
I don't know a LOT about criminal law, but there are some real Grade-A wingnuts screaming on this thread already who clearly don't know ANYTHING (and don't care).
--R.
Scroll down to 503.055 and 503.085 http://72.14.203.104/search?q=cache:HffQPwvPAyQJ:docjt.jus.state.ky.us/forms/legal/2006%2520statute%2520changes.pdf+krs+503.050&hl=en&gl=us&ct=clnk&cd=15
Well, that's a shame for the people of Kentucky.
Either:
You don't know many Judges, or
Kentucky Judges don't understand English....
But that doesn't make any sense. Is that to say that in other cases police can arrest someone absent probable cause to believe a crime has been committed. That doesn't seem right.
Whether a person acted reasonably under a given set of facts is a jury question. The role of the jury here is not to detemine the facts because the facts are not indispute, but to detemine whether the defendant acted reasonably. This is nothing new, at least not since the days of Blackstone.
That's a good point. It also might be resolved at the scene by the police.
A person does not have a duty to retreat if the person is in a place where he or she has a right to be.
Is Judge Sheila too dense to understand that language?
If you want the statute to study I suggest you go to my.findlaw.com and interpret it for yourself. It is apparnet that you are quintessentially qualified to make the classically wise decision that contradicts the law professor, the judge, me and my law firm partners. Good luck and please send us a copy of your published paper on the ignorance of all the many lawyers who find the statute impossible to interpret so as to assure due process to litigants before the Ky. court.
It happened because the NRA, in its typical fashion, handed the proposed statute to the legislators in Frankfort, Ky. who, as one, flocked to rush its passage to demonstrate their fidelity to the NRA money machine. And none of those geniuses subjected it to staff study for clarity and intelligibility. Now the NRA has accomplish exactly the inverse result vis-a-vis that which was their intent.
The prosecutor obviously doesn't believe the guy's story, and the judge can't grant a motion to dismiss because there are unsettled questions of fact.
It wasn't a shooting. It was a beating.
Clem is accused in the violent beating death of Keith Newberg. Police say the two were friends, but in August 2004 a fight broke out between the two inside a Lexington apartment. Investigators say Clem beat Newberg to death with a lamp.Source
Fifteen other states don't seem to have a problem. It may have something to do with an anti-gun, anti-freedom, anti-NRA, dem party appointed idiot judge.
If it wasn't for the NRA and the other gun groups, maybe you wouldn't have half the freedoms you're enjoying now.
Thanks for the link. That statute is not a great example of draftmanship, but I could follow it. It seems to me that the role of the court in this situation should be to hold an evidentiary hearing to determine either that 1)this defense definitely applies, in which case the charges should be dismissed, that 2) it does not apply, or that 3) the evidence is sufficently murky so as to present an issue for trial.
I have no issue with the NRA. They shouldn't be drafting legislation that defines criminal conduct, legislative immunity or definitions and categories of homocide. Look, it's a poorly drafted statute that needs refining and clarification sufficient to inform a citizen what line exists and its outer limits.
Post the entire law so Freepers can judge for themselves.
When we're not busy mixing new metaphors.
Thank you Sandy. It's pretty obvious that no one here attended the trial of James Adam Clem; or even knew him or the victim Keith Stephen Newberg. By Clem's own words on his taped confession before he was arrested, he invited Newberg into his apartment with the intent of paying some money's that Clem owed Newberg, some of which was for bailing Clem out of jail for prior offenses. But Clem also wanted Newberg to front him more cocaine, and when Newberg refused, Clem attacked him. Is that "Home Intrusion or Self Defense"? By the facts presented in court before it was cut short with a plea deal offered by the prosecution, that would have nullified SB 38 in this case. Clem's girlfriend also perjured herself by saying that she had no knowledge of Clem being violent, but she herself had called 911 at least once because Clem was beating her! And what about the fact that Newberg had 5 deep gashes in the back of his head from the metal lamp with a concrete base that Clem admitted to using; is that "Self Defense" on Clem's part? Also, the evidence showed that Clem was preparing to dispose of the body when Newberg's girlfriend foiled his plans by making a commotion outside of his apartment, so Clem "Freaked Out" and ran off to hide in the woods after locking the door to his apartment with Newberg's cel phone in hand. Welcome to the outer limits of the twilight zone! Clem will be up for parole in 2 months. The lesson learned from Senate Bill 38? Don't go anywhere without at least one close friend to cover your back!!!
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