Steve Nunn, the former Kentucky lawmaker spending life in prison for the death of his ex-fiancée, testified in Fayette Circuit Court Thursday that he should be allowed to withdraw his guilty plea because he had ineffective counsel from his attorney.
"Somehow or another, I was lied to, misrepresented, misled," Nunn said at the conclusion of a 51/2-hour evidentiary hearing.
Nunn, 61, the son of former Kentucky Gov. Louie B. Nunn, is serving a life sentence without parole but now contests his 2011 guilty plea. Nunn claims that his former attorney, Warren Scoville of London, gave him bad advice about pleading guilty rather than going to trial in a death penalty-eligible case.
Fayette Circuit Judge Pamela Goodwine made no decision Thursday. Nunn's attorneys and prosecutors have until Dec. 15 to submit post-hearing briefs to Goodwine, and she will make her decision sometime after that.
If Goodwine decides Nunn should be allowed to withdraw the plea, the case would start over with a trial and Nunn would be eligible again to face the death penalty.
Nunn said it was his understanding that, in exchange for his plea to murder and a sentence of life without parole, a wrongful death suit filed by the Ross family against him would be dismissed. Nunn said confirmation of the deal came from Scoville.
As it turned out, the wrongful death suit was not dismissed, and in August 2013, Fayette Circuit Judge James Ishmael Jr. found Nunn liable for more than $24 million in damages.
Public defender Dennis Burke asked Nunn whether he would have entered the guilty plea if he had known the civil suit would not be dismissed. "No, I wouldn't have pled guilty," Nunn said.
Burke asked: "So you would have gone to trial?"
"Right," Nunn said.
Assistant Commonwealth's Attorney Lou Anna Red Corn pressed Nunn on these points.
"I trusted my attorney," Nunn said. "I relied on his advice."
Red Corn noted that during sentencing, Goodwine asked Nunn whether any promises had been made to him in exchange for his plea.
"Did you say anything to the judge about it?" Red Corn asked.
"No, ma'am, I didn't," Nunn said.
Lawyers involved in the case gave different sworn testimony about whether a deal was struck.
Scoville testified that a deal was struck with Lexington lawyer Burl McCoy, who represented the Ross family in the wrongful-death suit.
"I know I got a message on my BlackBerry that McCoy had called my office and said, 'We have a deal.' I think I showed that to Steve and Mary (Nunn, Steve Nunn's daughter)," Scoville said.
"There wasn't an actual written agreement to that, was there?" Burke asked.
"Shook hands," Scoville said.
And in correspondence to Nunn that was read into the court record, Scoville wrote: "All I can do is trust Burl to do what he said he would do."
But when McCoy took the stand, he testified that there was never any deal to drop the civil suit. Burke asked McCoy whether he would have remembered offering such a deal.
"Absolutely," McCoy answered. "It didn't happen."
Bette Niemi, an attorney who assisted Scoville in preparing pretrial motions on the Nunn criminal case, testified that Nunn's guilty plea was "contingent" on dismissal of the civil case.
"I don't think Mr. Nunn would have plead guilty without this agreement," Niemi said.
Red Corn asked Niemi why she didn't tell Goodwine, the judge in the criminal case, about concerns that Niemi had with Nunn's plea.
"I probably should have," Niemi said.
(Scoville testified that Niemi was angry that he had not paid her $10,000 she felt she was owed for her assistance on the Nunn case. Scoville said he paid Niemi $20,000 for her work.)
Red Corn asked Niemi if she thought Nunn's plea was voluntary. "I think it was voluntary," Niemi said. "I think he was lied to. (Scoville) represented to him he had a deal to dismiss the civil case when he didn't."
After the sentencing, Nunn asked Louisville attorney, former lawmaker and friend Bob Heleringer to interview the lawyers about their recollections of any deal.
Heleringer testified that Scoville "was emphatic" that there was no deal to dismiss the civil case if there was a plea in the criminal case.
Scoville said his contracted fee to represent Nunn in the criminal case was $200,000.
Nunn acknowledged on the stand that he waited for Ross in the parking lot of her townhouse and then shot her before fleeing to southern Kentucky.
Scoville testified that because of Nunn's conduct, "I felt there was an excellent chance he would be given the death sentence."
Despite their differences, Scoville and Nunn shook hands after Scoville finished his testimony.
The Kentucky Department of Corrections website shows Nunn currently serving time at Northpoint Training Center near Danville in Boyle County. He spent about 15 years in the state legislature. His father served as governor from 1967 to 1971.