In what local prosecutors call a “landmark” ruling, the Kentucky Supreme Court Thursday made it clear in unusually strong language that judges are prohibited from talking with criminal defense attorneys about the release of a defendant without the input of the prosecution.

The ruling on this so-called ex parte, or
one-sided, contact between judges and lawyers found there is a “culture among some members of the Jefferson District Court and some members of the bar that appears completely inconsistent with the ethical execution of judicial duties.”

The high court called the “clandestine communication between some attorneys and some sitting judges” a “recurring problem” that must be addressed.

“The practice here was so egregious and distasteful and unethical that the court had to make it clear for every court in the commonwealth what they could not do,” Jefferson County Attorney Michael O'Connell said in an interview. “It does not get any stronger than that from the Supreme Court.”

Chief District Court Judge David Holton said he believes "the Supreme Court got it right," adding, however, that he didn't believe any current judges were taking part in the practice anymore.

"We have good and trustworthy people serving on the bench in Jefferson County," he said in an interview.

The high court's opinion stems from a Jefferson County case in which a former judge released two accused drug traffickers a few hours after another judge had set cash bonds for them.

Kenneth Westbay and Shannandoah Carman were arrested July 24, 2013 on multiple drug charges and being felons in possession of a hand gun. Jefferson District Court Judge David Bowles, who was the on-duty judge at the time, ordered the men jailed on a $5,000 cash bond.

But the next day, according to the Supreme Court ruling, former Judge Donald Armstrong “apparently phoned the Pretrial Services office and ordered” the two men released on their own recognizance.

The County Attorney's office claimed that a phone conversation recorded at Metro Corrections between Carman and his mother indicated  someone had “pulled strings” to get him released. Prosecutors argued the release was improper but Judge Stephanie Burke ruled that defense attorneys talking with judges about modifying bonds was “not uncommon,” according to the high court ruling.

The Supreme Court ruled Thursday that prosecutors should have been able to debate the judge's order to change the bond. And the court noted that the on-duty judge should handle the case, to prevent “judge-shopping tactics” like what happened in the Carman and Westbay case.

Allowing defense attorneys to "contact numerous judges ex parte until a favorable decision is achieved" is a practice the high court said needed to be prevented.

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