Attorneys for murder defendant Glenn Doneghy want the office of Fayette Commonwealth's Attorney Ray Larson disqualified from the case for "prosecutorial misconduct" and a special prosecutor appointed.
The attorneys — Kate Dunn, Gayle Slaughter and Sally Wasielewski — made the request in a motion filed Friday. The Herald-Leader obtained a copy of the motion just after it was filed in the Fayette circuit clerk's office. Fayette Circuit Court Judge James Ishmael later sealed the motion.
Doneghy, 34, is accused of deliberately striking Lexington police officer Bryan Durman, 27, with his vehicle on April 29, 2010, as Durman was investigating a noise complaint on North Limestone. The officer died a short while later.
Doneghy is to go on trial Monday.
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The defense team's motion stems from the wording of a document filed in court earlier this week by the prosecutor's office. In that document, Larson's office said that, on Monday, defense attorneys had "claimed, in open court, the existence of a videotape which contained some sort of a 'confession' and which 'would change things.' "
"Not true," says the defense attorneys' motion filed Friday.
On June 2, prosecutors provided defense attorneys with a "notice of discovery" that included a taped statement of a person who claimed to have a videotape of a young woman saying she was behind the wheel of the vehicle that killed Durman, the defense attorneys say.
"Quite legitimately" during the next hearing in the case on Monday, the defense team told the judge about the prosecutors' notice and asked if prosecutors had retrieved the tape of the woman and to furnish it to them if it had been retrieved, the defense motion says.
"Obviously, knowledge of the existence of the tape originated with the commonwealth, not the defense," the motion says.
According to Larson's office, the video recording was obtained by police on Wednesday and was found to show only an "explicit sexual episode" involving the woman and another individual. There is no mention of the facts of the criminal case, according to prosecutors.
The woman on the recording was interviewed by police last fall. Defense attorneys say she was dismissed as a person of interest.
The prosecutors' document "implies that the defense attempted to mislead the court and the public about the existence of a taped admission by the young woman in question by stating that the tape is nothing more than a sex tape with no reference to the case at bar," the defense attorneys say in their motion. They say Larson has engaged in prosecutorial misconduct by successfully manipulating the media into portraying them in a false light as untrustworthy and dishonest.
"The office of the Fayette commonwealth's attorney should be disqualified from any further action in this case due to its outrageous misconduct in this instance," the defense team says. "This conduct makes a mockery of the defendant's right to a fair trial" and due process under the United States Constitution, they say.
When a reporter asked Larson about the defense motion at a hearing on Friday, Larson said the judge had sealed it and referred the reporter to the judge.
Ishmael said the motion was under seal.
Also at Friday's hearing, Ishmael refused a prosecution request to postpone Doneghy's trial. Prosecutors made the request because a police accident reconstructionist they plan to use as a witness has a family member who is ill.
Ishmael said he couldn't recall a tougher decision he's had to make and said the court would accommodate the officer during the trial.