Friday, November 2, 2012

Judge Charlie Cunningham screws up the 37th State Senate District race

Louisville, KY - The 37th District Kentucky State Senate Race just got even worse. At issue is whether Republican candidate Chris Thieneman meets the residency requirement to run for the seat. In May of this year Thieneman was proven eligible by the courts and went on to win the Republican primary. I should know I filed the challenge myself.

This should have ended the issue.

It didn't thanks to the typical shenanigans of one Jennifer Moore of the Democratic Party.

Once again Moore decided to file a late challenge to a candidate she perceives as a threat against a sitting Democrat. I don't recall one of these cases last minute challenges she has won but honestly, in my opinion, she should be brought up on disbarment procedures for soliciting clients so she can use their name as plaintiffs.

What is complicating matters in the 37th District currently are the actions of one sitting Judge Charlie Cunningham who is scared to make a ruling for fear of either a) alienating his Democratic base, or b) alienating his fellow Judges one of which has previously ruled on the residency issue as outlined above.

It's the only logical conclusion I can make.

Rather than do the right thing and throw the case out on its merits alone after Moore's "witness" had to backtrack and deny the information in the affidavit he signed, Cunningham allowed the case to continue.

Cunningham himself publicly stated that he was "underwhelmed" with the prosecutions case yet he decided to do further harm to the residents and voters of the 37th district by making a non decision. Worse yet in my opinion he has violated the integrity of the Judicial itself.

Look at the standard procedures in court cases for example.

In its simplest form, trials or hearings are back and forth arguments between prosecution and defense.

The core of all trials is the evidence phase. In this phase, both sides present evidence, whether direct or circumstantial, in the form of witnesses' testimony or physical evidence. Either side can choose to cross examine witnesses brought forth by the opposing side. Moore's "witness" clearly falsified his affidavit as proven when questioned.

This was the first sign that this case was lacking merit.

The burden of proof requirement rests with the plaintiff. Simply put the plaintiff must convince the judge or jury by a preponderance of the evidence that the plaintiff's version is true. Or in this case at least over 50% is anyway.

The plaintiff presents their evidence against the defendant, the defendant argues against the evidence and presents evidence of their own that they believe will exonerate them from the charges.

Once both sides have presented their evidence, both are given equal opportunity to present closing arguments that will bolster their claims.

In closing arguments, the prosecution speaks first, summarizing the evidence that has been presented during the trial. The defense will follow, pointing to any perceived flaws in, or shortcomings of, the prosecution's case.

Because the burden of proof is on the prosecution, they will have the opportunity to speak again after the defense. This is called the rebuttal or a concluding argument wherein they may address points brought up in the defense's closing argument. This is the prosecution's final appeal to the jury or judge.

Again, closing statements are the final communication between both sides and the jury or judge.

Read here for a typical step by step in court proceedings.

Once closing arguments are made the Judge is then tasked with deciding the case based on the evidence presented before him. Period.

It really is that simple. The Judge is not compelled to, expected to, nor is it customary to request new evidence once the closing arguments are made. His only job is to evaluate the evidence presented to him on its face value and make a decision on whether there is guilt or innocence of an accused crime within the confines of the law.

Cunningham's job in this case was to evaluate the evidence before him and decide what is most probable.

Cunningham's task was an easy one but not a politically popular spot to be in.

Cunningham chose to delay a decision until after the election is decided one way or the other on Tuesday November 6. He then ruled that the results cannot be certified until he finally makes that decision.

Is this justice and fair to not only the residents of the 37th District but to candidate Thieneman as well? Does this create an unfair advantage for his opponent in Perry Clark? Of course it does and that is a problem unto itself.

Thieneman was already proven legal once. Cunningham need only look at that case and feel confident of his decision one way or the other based on his interpretations of it.

Instead, whether purposely or not, Cunningham just created an unfair advantage. What this does is let Cunningham off the hook for any responsibility in his decision.

Temporarily at least.

IF Clark wins, Cunningham is free to rule any way he wants without any repercussions from the Democratic voting bloc he relies on to get elected. That is the hope I am sure. It makes things a lot easier for him.

If Clark loses then we have a more serious decision to make. That one we will explore if it happens.

While playing the game of politics in this case though, Cunningham has opened a Pandora's box of possibilities against him.

One did he himself violate the law in his refusal to decide the case on its merits? Two is he above the law itself? I am sure we will see soon enough.

In announcing his non decision Cunningham claims he needs more evidence to make a decision and is now requesting items such as utility bills from Thieneman as part of that evidence.

The problem? Remember the burden of proof fell on Jennifer Moore. It was and is her responsibility to prove beyond any reasonable doubt one way or the other that she is right.

Not Judge Cunningham.

He has now put himself in the unique position of being a prosecuting attorney on a case he himself will decide. He is asking for evidence yet the case was concluded only awaiting a ruling. There can be nothing proper about that.

Think about it. If a jury is sitting on a trial can they ask for new evidence to be presented before they decide on guilt or innocence? No they can only consider the evidence that was put before them.

It is the same situation in a non jury court setting. The Judge acts as the jury and must adhere to evidentiary and court procedures accordingly.

It is not customary nor ordinary for a Judge to take such actions, and Cunningham knows it.

Or does he?

If he doesn't he isn't deserving of being on the bench. Clearly he has not the knowledge for the job. If he does, he has no business being on the bench because clearly he cannot be impartial.

Which is it?

There can be no other conclusion based on the evidence before us.

Once he adjudicated and was left to make a decision the evidential part of the process was over. His only job at that point was to decide one way or the other and render a decision. Period. Whether a  popular decision or not a decision is what he was tasked to make.

Coming back and asking for evidence and then outlining what that evidence should entail is nothing more than aiding the prosecutor instead of being objective in a case before him.

Judge Cunningham just committed what many will believe to be a major violation in his job duties and brought disrespect to the integrity of the judicial process itself.

As a voter in the 37th district, I am appalled at his lack of either knowledge in deciding this case or his lack of willingness to do the right thing for we the people. Perhaps there will be charges against him forthcoming.

The prosecution led by Moore clearly did not make their case against Thieneman and Cunningham is now giving them, and himself, a way out and that is wrong by any standard when we expect our Judges to be above board in their decision making.

Want more?

Visit the Judicial Conduct Commission and read the canons.

Judge Cunningham certainly will have more to answer for then a non decision at this point. Many will now question his personal integrity and his character. Sadly, I am one of them.

The JCC should get ready.....

Listen daily from 7-8pm at The Ed Springston Show. Also visit Louisville Politics for more details and in depth coverage of local political and news issues.

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