Fletcher pardon clears 4 aides
Judge says grand jury can continue indicting
By Mark Pitsch
mpitsch@courier-journal.com
The Courier-Journal



FRANKFORT, Ky. -- A judge dismissed indictments against four former Fletcher administration aides yesterday, saying they are covered by the governor's pardon order, even though it does not name them.

But in a separate ruling, Franklin Circuit Judge William Graham also said that Gov. Ernie Fletcher's broad pardon order cannot stop the grand jury from indicting more people in the state hiring investigation.

Fletcher disputed Graham's ruling, immediately asking the Court of Appeals to order the judge to tell the grand jury to stop issuing indictments. A date for consideration of the appeals case has not been set.

Since Fletcher issued his pardon order Aug. 29, the grand jury has indicted five people.

Yesterday, indictments were dismissed for Daniel Groves, Fletcher's former chief of staff and policy adviser who resigned in September; Vincent Fields, former Personnel Cabinet chief of staff whom Fletcher fired that month; Dave Disponett, a former Fletcher volunteer; and J. Marshall Hughes, another former Fletcher volunteer.

Acting Transportation Secretary Bill Nighbert was indicted Sept. 20 for allegedly retaliating against a whistleblower. That case is in district court and was not under consideration by Graham.

Nighbert said yesterday that he plans to seek dismissal of the charge.

Groves, Fields and Disponett were charged with three counts of criminal conspiracy to fill civil service jobs on the basis of politics, not qualifications. Hughes was charged with two counts of conspiracy.

Graham rejected Groves' request to quash his indictment and strike it from the court record.

Groves said in a statement that the judge erred on that point.

"I'm pleased the destructive indictments brought on by this reckless attorney general have been dismissed, but disappointed they weren't quashed since the law is clear these baseless charges cannot and should not have existed," Groves said.

Fletcher said in a statement that Graham was correct to dismiss the indictments sought by Attorney General Greg Stumbo.

He said Graham "recognized the gubernatorial power of amnesty, refuting weeks of outrageous comments from Greg Stumbo asserting the contrary."

Graham could not be reached for comment yesterday after his dismissal orders were received by the Franklin Circuit Court clerk's office.

Fields, Hughes and Disponett could not be reached for comment.

Stumbo spokeswoman Vicki Glass declined to comment last night on the dismissal orders, saying Stumbo and his staff hadn't read them.

In a court filing last month, Stumbo said that Fletcher's effort to bestow general amnesty is "an improper exercise" of the governor's pardon powers.

Stumbo argued that legal precedents in Kentucky courts do not give the governor power to pardon people who have not yet been indicted.

"The offense at issue must actually have been charged," the attorney general said.

Fletcher's Aug. 29 order said the pardon would extend to "any and all persons who have committed, or may be accused of committing, any offense up to and including the date hereof, relating in any way to the current merit system investigation." The order said he wouldn't pardon himself.

Grand jury can continue
Graham's order on the grand jury said its proceedings are "not constrained by the formal rules of evidence or oversight by this court," and the Kentucky Constitution gives the governor broad pardon powers.

"The executive power to pardon and the grand jury can exist concurrently just as the separate branches of government continue to operate separately and simultaneously," Graham wrote.

Leslie Abramson, a University of Louisville law professor, said Graham's ruling on the grand jury means that the scope of Fletcher's pardon will be determined after indictments are issued.

"The one implication for the judge's ruling is that the proper forum in which to entertain the scope of the governor's pardon is after the indictment is returned," Abramson said.

In a statement yesterday, Fletcher said Graham's ruling on the grand jury "is an incorrect application of the law."

"Never in the history of American jurisprudence has a grand jury continued to indict in the face of a lawful gubernatorial or presidential amnesty," the statement said.

Pierce Whites, deputy attorney general, said yesterday he was pleased with Graham's ruling allowing the grand jury to continue indicting.

"It is a very important decision in upholding the separation of powers," Whites said. "No matter how broad the power of the pardon, it can't shut down the grand jury."

In addition to letting the grand jury issue indictments, Graham's ruling will let the grand jury write a report on its findings even though the ruling doesn't specifically address that, Whites said.

"That paves the way for the people of Kentucky to know the truth," Whites said.

Appeals Court to hear case
A three-judge panel was to receive a copy of Fletcher's motion last night, George Fowler, staff attorney for the Court of Appeals, said.

Stumbo opened an investigation in May into allegations that the Fletcher administration was filling state jobs on the basis of politics in violation of the state merit system law.

A special Franklin County grand jury had indicted nine administration officials by the time Fletcher issued his pardon order.

But the grand jury continued issuing indictments, and last month Fletcher asked Graham to order the grand jury not to issue any more indictments, saying the indictments illegally infringed on his right to pardon.

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Mitch McConnell has stayed far away from this scandal even though Fletcher is his handpicked guy.

It is very sad that ANYONE has the power to pardon a guilty person.