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Robert Abell
Lexington, Kentucky
"Lets have faith that right makes might; and in that faith let us, to the end, dare to do our duty as we understand it." - Abraham Lincoln
Interests: Nothing on this blog is legal advice, and it shouldn't be taken as legal advice. This blog is free; legal advice you have to pay for. My purpose is to discuss events, cases and other things that seem important. I invite comments, although I may delete them because they are offensive to me, idiotic or any other reason I happen to think of.
Recent Activity
Judges sometimes do not allow a fair hearing and do not fairly consider the arguments of the parties' as shown in this colloquy from the Kentucky Court of Appeals: During the hearing before the trial court, counsel for Appellees argued extensively. When counsel for [appellant] stated that he had not had an opportunity to make his argument, the following discussion... Continue reading
Posted yesterday at ... and Justice for All
Slamming the University of Kentucky for repeated and prolonged stonewalling and evasion of Kentucky's Open Records Act, the Kentucky Supreme Court has sought to invigorate the Open Records Act and pointedly rejected the University's overly broad reading of FERPA. The decision came today in University of Kentucky v. Kernel Press. Read More here: University Ignored Statutory Obligations at Every Step.... Continue reading
Posted Mar 25, 2021 at ... and Justice for All
A defendant, who has rendered substantial assistance to the government and been subject of a Rule 35(b) motion to reduce his sentence, must be allowed "the opportunity to express his position on the Government's motion through a response as long as the response was timely," the Sixth Circuit has ruled in United States v. Redacted Party. The case was remanded... Continue reading
Posted Jan 28, 2021 at ... and Justice for All
Attorney's fees are recoverable in suits for unpaid overtime under the Fair Labor Standards Act (FLSA), and "a district court abuses its discretion if it limits the fees awardable under hte FLSA to a percentage of the plaintiff's recovery" the... Continue reading
Posted Jan 26, 2021 at Kentucky Employment Law Blog
Although the case ultimately went south for the plaintiff and the Sixth Circuit affirmed a summary judgment, the Sixth Circuit's recent decision in Thompson v. Fresh Products is instructive regarding the proof necessary to at least create a fact issue... Continue reading
Posted Jan 23, 2021 at Kentucky Employment Law Blog
Although the number of cases in which the Sixth Circuit reverses a district court's denial of compassionate release under the First Step Act will be very, very few -- it will take decades before the number has two digits -- you do have to give the court some credit for elevating form over substance as shown in its recent decision,... Continue reading
Posted Jan 20, 2021 at ... and Justice for All
The Sixth Circuit issued Friday a significant decision regarding the process and applicable factors for consideration of motions for compassionate release filed by defendants pursuant to the First Step Act in United States v. Jones. The most important point resolved in this case is "that U.S. Sentencing Guidelines § 1B1.13 is not an 'applicable' policy statement in cases where incarcerated... Continue reading
Posted Nov 23, 2020 at ... and Justice for All
The government could not prove to a reasonable jury that the heroin sold by Joshua Ewing resulted in the death of another person, and the Sixth Circuit was compelled to vacate the jury's erroneous and wrongful verdict. United States v. Ewing, 749 Fed.Appx. 317 (6th Cir. 2018). So the case was sent back to the District Court, the United States... Continue reading
Posted Oct 27, 2020 at ... and Justice for All
Rarely do former public defenders run for elected judicial positions (even more rarely are they appointed to judicial positions). But something may be happening way down South in New Orleans as reported in Slate: A Down-Ballot Revolution is Brewing in New Orleans. Imagine criminal justice. Robert L. Abell www.RobertAbellLaw.com Continue reading
Posted Oct 16, 2020 at ... and Justice for All
Employment discrimination, retaliation and wrongful termination cases often come down to the issue of pretext -- is the employer's explanation for doing whatever adverse was done not more than a lie, a lie offered to try and coverup something unlawful?... Continue reading
Posted Sep 13, 2020 at Kentucky Employment Law Blog
Causation -- the link between protected activity and an adverse employment action -- is usually time-bound and temporally proximate, meaning the adverse action follows fairly soon on the heels of the protest or report. But what about when the lapse... Continue reading
Posted Sep 12, 2020 at Kentucky Employment Law Blog
The Sixth Circuit has reversed a summary judgment granted an employer in an age discrimination case based on direct evidence of discrimination, statements by a plant manager to the plaintiff: "you're kind of getting up there in years, you're at... Continue reading
Posted Aug 26, 2020 at Kentucky Employment Law Blog
"Context is the key to meaning," says the Sixth Circuit and this drove its decision in United States v. Hill, where it decided that a district court erred in applying a sentencing enhancement requiring that robbery victims be taken to a different place than the robbery when all that happened was they were moved from the front of a store... Continue reading
Posted Aug 14, 2020 at ... and Justice for All
The removal of statues honoring individuals that took up arms against the United States principally in defense of slavery is something whose time has come. My mind has been changed on the issue and Josh Hicks, a candidate for Congress here in Kentucky's 6th District here in central Kentucky, explains well why in the following: Robert L. Abell www.RobertAbellLaw.com Continue reading
Posted Jul 14, 2020 at ... and Justice for All
Thus begins the Sixth Circuit's decision in Bray v. Planned Parenthood, 746 F.3d 229 (6th Cir. 2014), a case that illustrates how the doctrine of qualified immunity has been bent by the Sixth Circuit and other courts to sanction the abuse of some while insulating outrageous abuses of power from redress or accountability. The individuals whose conduct was thus described... Continue reading
Posted Jun 9, 2020 at ... and Justice for All
Our senior Senator, Mitch McConnell, has taken up the cause of an admitted liar and, along with other Republican Senators, filed a brief on the liar's behalf. The disgraced Michael Flynn is the beneficiary of this effort. Here's the Brief; read it and choke on it. Who knew these Senators had so much concern and time to take up for... Continue reading
Posted Jun 4, 2020 at ... and Justice for All
Former NBAer and UK basketball star Rex Chapman, on first thought, would seem an unlikely candidate to pen such a powerful essay on race in America. But he's done it: "Injustice, double standards and heartbreaking bigotry." He's seen what he's seen and shared it well. Robert L. Abell www.RobertAbellLaw.com Continue reading
Posted Jun 3, 2020 at ... and Justice for All
Marty Smith was convicted in 2006 of participating in a crack cocaine conspiracy involving more than 50 grams. He had a prior felony drug conviction and so, based on the amount of crack cocaine involved, was 20 years. The United States Sentencing Guidelines, at the time, prescribed a sentencing range of 168-210 months, which, of course, was trumped by the... Continue reading
Posted May 18, 2020 at ... and Justice for All
Dennis Willard, by the account offered by the Sixth Circuit, is "a successful, veteran car salesman," who ranked in the top 125 of Ford's 3,500 national salesforce. He was 63, when he was fired, and probably it could be found... Continue reading
Posted Apr 6, 2020 at Kentucky Employment Law Blog
The Sixth Circuit's recent decision in Torres v. Vitale, which was discussed in a prior post, RICO Claims Can Arise from Wage Theft Scheme, Sixth Circuit Rules, implicated the doctrine of preclusion, a judicially-fabricated doctrine unmoored from and contradictory to the text of the laws involved, the Fair Labor Standards Act (FLSA) and RICO. Preclusion is an example of courts... Continue reading
Posted Apr 2, 2020 at ... and Justice for All
Employees at Vitale's Italian Restaurants kept two timecards, "one reflecting the first forty hours of work, and the other, reflecting overtime hours. The employees were paid via check for the first card and via cash for the second. The pay... Continue reading
Posted Apr 1, 2020 at Kentucky Employment Law Blog
As discussed in the prior post, Healthcare Fraud and the Ordeal of Dr. Richard Paulus; Part I, the Sixth Circuit reinstated the healthcare fraud convictions of Dr. Richard Paulus, the court concluding that the statistical evidence presented by the government's experts indicated a disproportionate tendency amounting to a "lengthy pattern" by Dr. Paulus to overstate the arterial blockage indicated by... Continue reading
Posted Apr 1, 2020 at ... and Justice for All
Angiograms are medical tests that measure the extent of a patient's arterial stenosis (put plainly: the degree of blockage of the heart arteries). For instance, a cardiologist reviewing an angiogram could conclude the patient had 60% blockage. But angiograms, as a matter of course, are subject to widely varying interpretations: one cardiologist may conclude a blockage of 60%, while another... Continue reading
Posted Mar 31, 2020 at ... and Justice for All
The Department of Justice and the Solicitor General's office represent the United States government in criminal cases in the Supreme Court. But there is no similar office that represents criminal defendants before or in the Supreme Court. Does this absence raise an impediment to equal justice under law? A good case for a Defender General's office is made by two... Continue reading
Posted Mar 16, 2020 at ... and Justice for All
In an opinion straining at the bit to express hostility toward the Americans With Disabilities Act (ADA) as mildly as possible, the Sixth Circuit suggested that it is ready to re-examine its subjective intent requirement in constructive discharge cases. The... Continue reading
Posted Mar 9, 2020 at Kentucky Employment Law Blog