Monthly Archive: September 2012

Sep 23

May a lawyer call a judge, out of court and out of the presence of a prosecutor, to request that a bond be set or lowered?

The law is still gray, and the procedure needs to be changed to 1) make the police take an arrested person before a judge for the setting of bond immediately, and 2) have a judge and prosecutor available 24/7 so that defense counsel can address the court, on the record, with full participation by both parties.

On 9/20/2012 in the case of Commonwealth v. Wilson the Kentucky Supreme Court dealt with the issue of when and if lawyers may communicate with judges off the record and outside the presence of the prosecution in criminal cases.

You can read the opinion here:

In Jefferson County there has long been a practice of defense lawyers keeping a few
District Court judges on speed dial. It has been de riguer for a defendant or a family member to
contact their lawyer late at night or on the weekend following an arrest for a relatively minor
matter, meaning a traffic infraction or non violent misdemeanor, and for that lawyer in turn to
call a judge to ask that a bond be set. The alternative is waiting for the defendant to be brought
before a judge to have bail set, which under some circumstances can take as much as 40 hours.

If a defendant is arrested at 2:00 PM on a Saturday afternoon for an unpaid traffic fine bench
warrant it is possible they might have to sit in jail until Monday morning before seeing a judge,
but a call from a defense attorney to a judge might cause a bond to be set immediately, which
would allow a defendant out of jail by Saturday at 4:00 PM.

Wilson calls into question that practice, but while walking up to the edge of absolutely
banning it, leaves lawyers and prosecutors guessing as to what communications are allowed on
the issue of setting an initial bond. The Wilson court stated: “…[]…Kentucky’s Judicial Canons
forbid one-sided contacts relating to all judicial proceedings, except in regards to scheduling,
initial fixing of bail, administrative purposes, or emergencies that do not deal with substantive
matters or issues on the merits.”

I have always believed that appellate opinions serve more than one purpose. The first
and absolutely necessary purpose is to address the controversy between the parties. The second
and laudable purpose is to educate the readers of the opinions (lawyers and judges in particular)
as to the state of the law. While on the very narrow issue existing between the parties, the
Wilson opinion addresses the controversy. But on the issue of one-sided contacts between the
defense attorney and judge upon the initial fixing of bail, the Wilson opinion is subject to
interpretation, and at the Hall of Justice today defense attorneys and prosecutors are still
debating what it means for bail because the opinion itself fails to precisely deal with it.

The simple solution is: set bond faster, immediately if possible. This means an arrested
person–especially one arrested on a minor offense–should not have to wait hours for a bond to
be set; it should be set in less than an hour. To do that a judge needs to be available at the time
of arrest to set a bond. Some may say this is impractical, but in Jefferson County we already
have a judge on the bench or “on call” 24/7. The County Attorney has sufficient resources to
have an assistant on call 24/7 as well. The technology exits, even if it is merely a three way
phone call, to allow a defendant, through counsel, to contact the judge and move for a bond to be
set, at all hours of the night and weekends, allowing for participation by the state in that decision.

The Constitution provides that a bond be set, but the Constitution was written before the phone
or internet; we now have the technology to give quick bonds. We should use it. Also,
defendants are citizens and tax payers; most will be presumed innocent, some actually are, and
few, statistically speaking, are actually flight risks. That is what the Wilson court should have
said, but unfortunately did not.

Sep 18

If the driver of the car that caused your injuries was on a cell phone, your case just got a lot better.

As a lawyer, one of the things I have to confront every day is that hard science trumps intuition every time.  I have used cell phones for over a decade now, and have used them while driving, both the kind I have to hold in one hand and dial (meaning I am driving with my knees) as well as the kind that are wireless headsets like Bluetooth.  I have to confess I never felt I was an unsafe driver, I never felt that talking on the phone, or even dialing the phone for a few instances caused any impairment in my control of the vehicle, but I was wrong.


Recently, at least three studies have concluded that drivers on cell phones are distracted to the point of being as impaired as one driving on at least a bit of alcohol.  In 2006 a study came out in Human Factors: The Journal of the Human Factors and Ergonomics Society, in which drivers with a .08 blood alcohol level (Kentucky’s legal limit) were less distracted drivers than drivers on cell phones.

That study was confirmed by even more direct scientific evidence by Carnegie Mellon University in 2008.

And before those scientific studies, the National Safety Council concluded cell phone use contributes to poor driving, and the National Highway Traffic Safety Administration estimated that 20-30 percent of all crashes may be caused in part by the driver driving distracted by a cell phone.

I have used the above reports in settlement negotiatoins with insurance companies with results very favorable to my client.  Most recently I represented a client who was stopped in traffic and was slammed into from behind.  We recovered a great settlement because the driver of the car who hit him acknowledged that at the time of the crash she had dropped her cell phone and was leaning down on the passenger side floor board attempting to pick it up. Now, that is pretty obvious liability under a mere negligence standard, but equating cell phone use with drunk driving allowed us to at least argue that liability was founded on gross negligence or recklessness, meaning we opened up the possibility of attorney fees and punitive damages.  This in turn prompted a quicker settlement.

Oh, and for those who want to know, I still keep my cell in the car with me, but if I am going to take a call I make sure to pull off the road to a safe place before pushing a button.

If you are in a wreck, contact me; one of the first things I routinely do is obtain the other driver’s cell phone records.

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