11 August 2006

Kentucky: Politics & the Courts

Last month I ran a three part series titled: My Old Kentucky Home - Bare Knuckle Politics & the Courts (One, Two, & Three).

Today we find out if the judge is going to throw out the charges. From the news articles, there are six arguments for dismissal. The one causing the biggest fuss is the claim that since this statute has never been enforced before it shouldn't be this time. I must admit, as much as I think acts on both sides are politically driven, I wouldn't want to be arguing that a prosecutor exercising his choice as to whom he shall prosecute under a valid statute is grounds for dismissal. Another ground is the Chief Justice's footnote which seemed to say that the remedy for gubernatorial problems is impeachment and until impeached a governor can't be prosecuted. That may be precedent or dicta but it sure is radioactive. No judge with an ounce of political sense is going to touch that unless someone holds a gun to his head and forces him. I shan't comment on whether the indictments are proper, the statute is void for vagueness, or the record has sufficient indicia of criminal intent to make it past a motion to dismiss except to say that the first two are pretty much boilerplate and the third is something I would expect a judge to want a jury to decide - I don't know the facts, statutes, or case law well enough to opine beyond that.

What might prove the most interesting is the argument that the statute of limitations has kicked in and the case cannot go forward. This kind of argument is always interesting because it basically provides the judge with an out. Depending on what the judge chooses as the last act the statute may have run or it may not. In your basic criminal case the judge will bend over backward to find a reason the statute has been tolled or a continuing act. Of course, this is not your basic criminal case (how many of ya'll have filed a 47 page motion in misdemeanor court?).

I can't find the Governor's motion to dismiss, but here's the AG's reply.

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