The Courier-Journal is reporting that the Gov.'s lawyers have filed a motion asking the Franklin district court to dismiss indictments against him because he is being selectively prosecuted by Stumbo.
Read it in the Courier-Journal
Here are excerpts:
Gov. Ernie Fletcher shouldn't be prosecuted for violating Kentucky's merit-protection law, his lawyers say, because Democrats have broken it repeatedly for 45 years without being punished. ... [Their 96 page motion] cites decades of alleged political discrimination by Democratic administrations ... [that went un]prosecuted [until Fletcher].
... legal scholars and lawyers say that "selective prosecution" arguments virtually always fail, in part because courts grant wide latitude to prosecutors -- including the freedom to change their priorities.
"If we acknowledge that crimes were committed, does the law require us to do nothing because nothing had been done in the past?" asked a former Jefferson County commonwealth's attorney. ... Fletcher's lawyers cite these reasons why the charges should be thrown out:
(1) the argument advanced last month by Kentucky Chief Justice Joseph Lambert that the governor, like the president of the United States, may be immune from prosecution while in office.
Lambert, a Republican, defended his comments by citing the work of "highly regarded legal scholars," including Laurence Tribe of Harvard and Edwin Chemerinsky of Duke.
But both told The Courier-Journal that governors don't enjoy the same immunity as presidents.
Tribe called the comparison "an altogether misleading analogy" and said "it would clearly be a misuse of the views I expressed on this subject."
(2) ... [Fletcher's] lawyers say that even if he did [break the laws], it would violate the Constitution's guarantee of "equal protection under the law" if he were to be prosecuted when others weren't, ... cit[ing] 65 instances since 1972 in which the state Personnel Board found that merit workers had been discriminated against -- but none in which anyone was prosecuted by the attorney general. ...
Fletcher's legal team also says "incontrovertible data" proves that Democratic Party control of state government has resulted in disproportionate numbers of registered Democrats in merit jobs.
... Attorney General Greg Stumbo, a Democrat, said last year that any imbalance is irrelevant to whether Fletcher violated the law. ... Fletcher's legal team say prosecution should be barred under a 1966 decision in Hecks case, wherein Kentucky's high court threw out Sunday "blue law" charges against a new department store in Ashland upon Heck's showing that no other merchants had been charged with breaking that law in 25 years.
"Heck's arrival in Ashland is the equivalent of Fletcher arriving in Frankfort," and "The same type of powers-that-be whose status quo were threatened" in Ashland "came to the fore in Frankfort", the motion stated.
Legal experts say the brief provides a fascinating history of patronage in Kentucky. But Indiana University law professor Craig Bradley and veteran Frankfort lawyer Guthrie True say the selective-prosecution argument likely will fail. For one thing, they said, Fletcher undercut it by pardoning the others charged with similar crimes; if not for that, the prosecution of Fletcher wouldn't seem so selective
. Experts, including University of Kentucky law professor William Fortune and former federal prosecutor Kent Wicker, also said the Ashland case is different because the same prosecutor kept charging Heck's but let other merchants go unpunished.
"Stumbo can't be blamed for what former AGs didn't do,"
Fortune said. Wicker said: "Priorities change and certain types of crimes become more important to prosecute. Prosecutors are allowed to change their priorities."Wicker and Bradley also said prosecutors are allowed to decide whom to prosecute, as long as their decision isn't based on a defendant's race, sex or other protected characteristic. "I am not sure Republicans are a protected class,"
(3) Given the attorney general's interest in potentially running for governor, he should have stepped down, the motion says. "Any other objective prosecutor would have disengaged himself and his office from any legitimate investigation." Stumbo had said after Fletcher's indictment that he wouldn't run for governor as long as his office was still prosecuting the case, but he didn't rule out a 2007 campaign altogether, Fletcher's lawyers said. Special Judge David Melcher has since ruled that Stumbo must step down from the prosecution, though his assistants may stay. .
(4) The Fletcher team says no criminal acts in the alleged conspiracy came within a year of the governor's May 11 indictment, as required under the one-year statute of limitations for prosecuting misdemeanors. The only alleged misconduct within the year -- the firing of Transportation Cabinet Deputy Inspector General Mike Duncan on May 13, 2005 -- does not count, Fletcher's lawyers say, because he was on probation at the time... . Wicker, a former federal prosecutor, disputed that and said an "overt act" in a conspiracy charge does not have to be a crime.
(5) Fletcher's lawyers say the merit law doesn't adequately spell out who is the alleged law-breaker, since it says "no person shall be appointed or promoted to or demoted or in any way discriminated against" in merit jobs because of their political affiliation. "By saying 'no person shall be appointed' rather than 'no person shall appoint,' the statute is directed at those people affected by the decisions, not the decision-makers," Fletcher's motion contends. "While such loose language might be sufficient for civil cases before the Personnel Board … it is insufficient for a criminal statute." Russell Weaver, who teaches criminal procedure at the University of Louisville, said the courts do require criminal laws to be more specific, but added, "It sounds like a losing argument to me."
I must say the motion makes some very invalid and valid points:
point about the immunity of the Gov. from prosecution is a DUD. It makes the Gov. above the law. That was what the Founding Fathers fought against when they severed all political and other ties with King George!
point about selective prosecution is also a DUD. Bradley, True and Wicker's arguments EFFECTIVELY dispose of point number two.
point has already being rendered moot by the special judge's actions in getting rid of Stumbo. So that one is NOW a DUD, too.
point regarding conspiracy and the tolling of time depends on when the alleged conspiracy ended. An active conspiracy is still prosecutable long after any "overt" acts giving rise to the conspiracy charge had ceased. So depending on when the alleged conspiracy ceased, this point may also prove to be a DUD -- or not.
point is a little more troubling to me. The Gov.'s motion raises a VERY good argument. Like the Gov.'s motion seems to question, I too question why the legislature would address the law to the recipient of the "meritless" job favor, if the legislature wanted to criminally punish the person responsible for the illegal act!? One thing is for sure: the legislature wants to dispossess the "meritless" employee of his/her illgotten favor. What else follows is debatable. The legislative history will, undoubtably, shed some light on this issue, and I do NOT have the legislative history at hand. In any event, the law is in other respects constitutional (and NOT vague or overbroad). I am NOT calling it yet on this fifth point since its resolution can go either way, depending on which way the legislative history resolves it!
Nonetheless, it is IMPORTANT that we NOT forget that Republicans pledged to be better than Democrats, and NOT to simply emulate them!!
Labels: Kentucky politics