Special access to judges


by Adam Walser


Posted on February 27, 2012 at 7:30 PM

Updated Tuesday, Feb 28 at 11:32 PM

LOUISVILLE, Ky. (WHAS11) -- With increased technology, some lawyers have easier-than-ever access to judges, using cell phones, e-mails and text messages to keep their clients out of jail.

But is it fair?

As the WHAS11 I-Team discovered, Jefferson County Attorney Michael O'Connell doesn't think so. And, he's asking the Kentucky Supreme Court to intervene.

What initially grabbed our attention was a report of a disturbing violent crime described in an arrest warrant.

The complaint said Amanda Havill broke into her former boyfriend's condo and waited for him to come home. When he arrived with his new girlfriend, Havill allegedly beat and kicked the other woman, then dragged her down a flight of stairs by her hair.

On Jan. 21, two police officers went to Havill's house in the upscale Autumn Ridge subdivision to arrest her for first degree burglary. Police said when they came to serve the felony warrant that Saturday night, they had to wait at the front door for at least 10 minutes.

One officer said he saw Havill peeking out the front living room window. When she finally did come to the door, she had her phone in one hand and told police that she had her lawyer on the line.

The lawyer, Maury Kommor, had just spoken to Jefferson County District Court Judge Donald Armstrong, Jr.

The officers called a police dispatcher to re-verify the warrant after Havill refused to come with them.

“That's gonna be a 10-4 on that sir,” the dispatcher said. “It says set aside as a criminal summons executed by the judge named at 7:32 today's date.”

Under the Kentucky Open Records law, we obtained an e-mail one of those officers sent to his supervisors the next day.

He wrote "I am concerned with the ethical, conflict of interest and justice repercussions that this occurrence may be demonstrating."

The e-mail also questioned whether poor defendants have the same treatment as those who have a lawyer with easy access to a judge.

The officer's lieutenant replied, "It sucks and it should not be the way business is done."

When asked whether it is too late for a warrant to be changed when an officer is standing at the front door, defense attorney Thomas Clay replied, “It's not too late, although it's perilously close to being too late, because they're there to arrest somebody. “

Clay said it's his job to keep clients from having to go to jail. He also said he has judges' cell and home phone numbers on speed dial.

“I sure do. You bet,” Clay said. “I use them when I need to. I text them.”

Metro Corrections is not where Havill wanted to spend that Saturday night.

People without money or connected lawyers are brought to the jail when a warrant is issued for their arrest.

Tension is high. The wait is long.

When an inmate is brought to Metro Corrections on a warrant, it takes at least two hours to process them. They have to be fingerprinted, photographed and asked a series of questions. Then their bond can be set, or in many cases, they end up spending the night in jail.

“It may create the problem of unequal treatment,” Russell Weaver, a professor at the Brandeis School of Law at University of Louisville, said.

“It's a bit strange if you've got a lawyer just calling up a judge, especially at home. And so you ordinarily expect the Commonwealth's Attorney to have a say in this. To circumvent that is out of the ordinary,” Weaver said.

In the Havill case, the summons shows judge Armstrong actually assigned the case to his own courtroom, even though it was supposed to be assigned elsewhere according to the defendant's last name.

Even though the summons was served, no court date showed up in the system until after we asked about the case several days later.

Havill was not actually arraigned for more than a month.

County attorney Mike O'Connell believes that type of manipulation of the system should not be allowed.

“It's just pick up your cell phone and dial a judge and hope you find the right one that's willing to recall an arrest warrant which has already been reviewed, already been issued,” O’Connell said.

O'Connell filed a brief with the Kentucky Supreme Court asking the court to rule that communications between defense lawyers and judges aren't legal if a prosecutor isn't present.

The case he cited involved an arrest warrant changed by a judge to a summons in a domestic violence case last year.

“The court had said ‘We do this every single day,’ and that ‘It's absolutely acceptable,’. It's unacceptable and it should stop,” O’Connell said.

That case was a misdemeanor.

Havill's case is a felony.

And the officers who responded went there knowing she had prior Emergency Protection Orders sought against her.

In one of those court documents, there was an allegation that she had a gun.

“Really volatile cases, you never know what's gonna happen to the family, to the victim,” O’Connell said.

For now, prosecutors are keeping up with cases as best they can.

“If that warrant is changed to a summons, what's the big deal? It shouldn't be a big deal to them,” Clay said.

Meanwhile judges and defense attorneys continue to have private conversations.

Prosecutors hope a ruling by the high court will soon change all that.

“It will have a statewide impact, one way or the other,” said O’Connell.

We called attorney Maury Kommor and Judge Donald Armstrong, Jr. multiple times and offered them a chance to do an on camera interview, but they didn't call us back.

On one occasion we did speak with Judge Armstrong by phone.

He said he meant to change Havill's warrant to a summons earlier that day after speaking with Kommor, but somehow the change didn't take effect before the officers were sent to the home.