Three men accused of conspiring to tamper with $130 million in state road contracts in 2006 and 2007 want the case against them thrown out because details of the investigation were made public before the trio were indicted in September.
Road contractor Leonard Lawson, former Transportation Secretary Bill Nighbert and Brian Billings, a Lawson employee, are asking a federal judge to dismiss the charges because they say an FBI agent's affidavit should have been sealed when it was filed in August at a London courthouse.
In court documents filed in federal court in Lexington Thursday, defense lawyers said they want to find out how a newspaper reporter found the affidavit.
The affidavit filed Aug. 8 contained detailed information about a grand jury investigation into alleged bid tampering by Lawson more than four weeks before the grand jury returned its indictment on Sept. 3. The publicity that affidavit generated could have influenced the grand jury to return an indictment against their clients, lawyers for the three men argue.
Lawson, Nighbert and Billings were indicted on a host of charges including bribery and obstruction of justice. Prosecutors say Nighbert directed transportation employees to obtain internal cabinet estimates on road projects that Lawson's companies were going to bid on.
All three have pleaded not guilty.
The men want a judge to release the transcripts of grand jury proceedings and also want a judge to hold an evidentiary hearing to determine how the media knew that the affidavit was left unsealed at the federal courthouse in London. The transcripts and hearing would help defense lawyers determine whether the government played a role in leaking the affidavit, court documents say.
As part of that evidentiary hearing, defense lawyers said they want to question Louisville Courier-Journal reporter Tom Loftus, who published a story Aug. 9 about the affidavit, on how he knew that the affidavit was at the London courthouse.
Larry Mackey, a defense lawyer for Lawson, declined to comment on whether he would put Loftus on the stand to answer questions.
Ben Post, the managing editor of the Courier-Journal, also declined to comment on whether the newspaper would fight Mackey's attempts to get Loftus to tell how he knew about the affidavit.
Another reporter, Brad Hicks of the Corbin Times-Tribune, also wrote a story about the affidavit on Aug. 9. Hicks has already told defense lawyers that he went to the federal courthouse and checked court filings and found the affidavit, according to court documents.
If a judge decides that the leaking of the information did prejudice the grand jury, the indictment should be dismissed, lawyers for the trio say. If the judge decides that the government acted improperly by tipping off the media to the unsealed affidavit, the judge could disqualify prosecutors and the FBI agents currently working on the case.
The motion to dismiss is not a surprise.
Assistant U.S. Attorney Ken Taylor, in a Nov. 10 hearing, said that the defense strategy in the case is to cast doubt on key witnesses against the three men and the prosecution.
"We will vigorously defend (the allegations)," Taylor said Thursday. "We will be filing a response shortly."
Mackey, in court documents, said he filed a complaint against federal prosecutors and FBI agents with the FBI's and Department of Justice's Offices of Professional Responsibility. The FBI declined to investigate, saying that it was a matter for the courts to decide. The Department of Justice has not yet responded to the request, Mackey said in court documents.
A trial in the case is set for April 28.