A new defense attorney took over the appeal of Glenn Doneghy's case Friday, and already the case has suffered a setback.
At a motion hearing Friday, Fayette Circuit Judge James Ishmael denied Lexington attorney John Tackett's request to interview jurors about what happened during an unsupervised lunch break while they were deliberating Doneghy's verdict in the death of Lexington police officer Bryan Durman.
Tackett said he was "hamstrung" by that ruling because the lunch break — during which jurors were allowed to roam freely downtown in the midst of family and colleagues of the victim and defendant — probably would become a major issue once the case is appealed to the Kentucky Supreme Court.
Tackett took the reins of Doneghy's case after Ishmael allowed defense attorneys Kate Dunn, Sally Wasielewski and Gayle Slaughter to withdraw as his defense team.
Doneghy, who originally was charged with murder, was found guilty of manslaughter in June after a jury determined he caused Durman's death.
Durman, 27, was hit by Doneghy's sport utility vehicle on North Limestone while investigating a noise complaint on the night of April 29, 2010. The officer died a short time later.
Dunn, Wasielewski and Slaughter represented Doneghy throughout the lengthy and highly publicized case. They turned it over to Tackett to give the appeals process a set of "fresh eyes," Tackett said.
During the motion hearing, Ishmael asked Doneghy whether he was previously aware that his attorneys would be withdrawing from the case. Doneghy replied, "Sort of," but he said he did not object to the change.
Wasielewski said after the hearing there was no conflict between Doneghy and his previous attorneys. She said the terms of their contract had simply come to an end.
"I and the others were hired to represent him at a jury trial," she said. "We did not contract to do an appeal."
Wasielewski said she, Dunn and Slaughter interviewed several attorneys but chose to give the case to Tackett because "he has a good reputation ... he's familiar with the appellate process and he's known to be a good appeal writer."
She said they will stay in contact with Doneghy and Tackett during the appeals process.
Tackett said he would file a notice of appeal with the Kentucky Supreme Court in the coming weeks, but his first order of business was Friday's motion asking the court to allow him to interview jurors.
Doneghy's previous defense attorneys had contended that the unsupervised lunch break violated Kentucky law and that the jurors should have been kept in a group and escorted by a deputy sheriff once deliberations began. They said the potential that jurors could have been prejudiced warranted a new trial.
Tackett told the court he wanted to interview jurors specifically to determine whether anyone approached them or tried to speak to them about the case while they were deliberating.
"The purpose of the inquiry would not be to determine what happened during the deliberation proceedings ... and would be confined to what happened during lunch," he said.
Ishmael denied the motion after an objection from Commonwealth's Attorney Ray Larson, who reminded the judge that defense attorneys "vehemently denied" Larson's motion to interview jurors in July.
Defense attorneys claimed "we were doing nothing more than attempting to research grounds to oppose their motion for a new trial," Larson said. "Of course, that wasn't true."
But he said the same argument stood, calling Tackett's attempt to interview jurors "a fishing expedition" for ammunition for his appeal.
"They're trying to do the same thing" they accused prosecutors of doing, he said.
Ishmael ultimately ruled that the issue had been settled June 30, the day the jurors were given an unsupervised lunch break. When attorneys brought up the issue, Ishmael suggested they interview the jurors on the spot to make sure they had not been compromised.
"I wanted to get it on the record, I wanted to get it clarified, I didn't want there to be any issue about it," he said. "That was rejected by counsel for Mr. Doneghy."
Tackett said he didn't know why defense attorneys didn't elect to interview jurors then, but he speculated they "didn't want to look like they were accusing them of something."
Regardless, not knowing what happened during the lunch break probably will affect the appeal, he said.
"The Supreme Court is going to want to know what happened and whether there was any material prejudice," he said.