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Posted on Thu, Jul. 27, 2006
'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.
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Reach Brandon Ortiz at (859) 231-1443, 1-800-950-6397, Ext. 1443, or [email protected].
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© 2006 Lexington Herald-Leader and wire service sources. All Rights Reserved.
http://www.kentucky.com
Posted on Thu, Jul. 27, 2006
'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.
--------------------------------------------------------------------------------
Reach Brandon Ortiz at (859) 231-1443, 1-800-950-6397, Ext. 1443, or [email protected].
--------------------------------------------------------------------------------
© 2006 Lexington Herald-Leader and wire service sources. All Rights Reserved.
http://www.kentucky.com