Politics & Government

Judge: Fletcher cannot be tried

FRANKFORT - Gov. Ernie Fletcher will remain under indictment on three criminal misdemeanor charges related to a state hiring scandal, but he cannot be tried until he is impeached or is out of office, a judge ruled yesterday.

Special Franklin District Judge David E. Melcher ruled from the bench before a packed courtroom in the Franklin County Courthouse and said he will issue an official order Aug. 18.

The ruling means Fletcher, Kentucky's first Republican governor since 1971, probably will remain under indictment while running for re-election next year.

One of Fletcher's attorneys, Kent Westberry, said it "could be a long time" before Fletcher is tried, "especially if he's re-elected" next year for another four-year term.

Impeachment is a possibility but House Democrats said that is unlikely. They seem more resigned to let the charges stay attached to the governor.

Steve Pitt, another attorney for Fletcher, said, "We would certainly hope that at this point in time that the prosecutors would go back, look inward and determine what's best for the Commonwealth of Kentucky. That is that this should come to a halt."

Fletcher, in a statement, did not address the indictment. He said without elaboration that he was "pleased" with the ruling "because Kentuckians are weary of this sad ordeal. Now, we can all turn our full attention to the children, families and communities of this great commonwealth."

Attorney General Greg Stumbo's office said in a statement that it is "pleased that the governor's motion to dismiss (the indictment) has been denied in all respects.

"Gov. Fletcher's criminal trial will be delayed until he is either impeached or out of office. The court's ruling affirms the principle that no person is above the law."

A special Franklin County grand jury, impaneled in June 2005 at Stumbo's request, indicted Fletcher May 11 on charges of criminal conspiracy, official misconduct and violating a prohibition against political discrimination. He pleaded not guilty, and trial had been scheduled for Nov. 8, the day after the general election.

Fletcher maintained that the investigation was politically motivated because Stumbo, a Democrat, would not rule out a possible bid against him next year for the state's highest elective office.

Defense attorneys Westberry and Pitt argued that prosecutors have not shown that Fletcher said or did anything illegal. They offered the judge six main arguments for dismissal.

Melcher overruled five of them, but was struck by Fletcher's attorneys' point that a governor has immunity from prosecution for official acts, such as hiring state employees.

Pitt said in court that a governor must first be impeached by the state House and convicted by the state Senate before such a prosecution.

Scott Crawford-Sutherland, the attorney general's top prosecutor, countered that Kentucky law does not explicitly say that. "There is no state in this country that has extended the kind of immunity urged by the governor," he said.

The executive-immunity argument first surfaced earlier this summer, when Kentucky Supreme Court Chief Justice Joseph Lambert raised the point in an unusual footnote in an unrelated ruling.

Days later, the governor's legal defense team used that as the central argument in its request for the judge to dismiss the charges.

Melcher met privately with prosecutors and defense attorneys yesterday before delivering his ruling.

During the hearing, Pitt said the case against Fletcher is "unprecedented" in that no other Kentucky governor has ever been indicted on violations of the state personnel law.

Pitt said Fletcher was willing to face a jury, "but there are other considerations as well which lead to the motion to dismiss. That is the important need of this state to return to normalcy, and get back to the operation of government as it should be without the cloud hanging over it of this unprecedented criminal case."

Crawford-Sutherland, the assistant attorney general, told the judge that he has been prosecuting cases for 15 years and has had much respect for the criminal justice system.

But, he said, his faith in the operation of the system in recent months "has been shaken but not broken." He added that the system and its laws apply to everyone, including the governor.

After the ruling, Crawford-Sutherland said, "The case against the governor will go forward, either after he's impeached or out of office." He would not say whether Melcher's ruling would be appealed.

Westberry said it is rare that a judge dismisses an indictment in a criminal case, but "we're very, very pleased." He said he doubts that the governor will seek an appeal.

Senate President David Williams, a Burkesville Republican, who has questioned Fletcher's re-electability, said he thinks Fletcher now has three options: impeachment; seek a trial and try to get vindicated; or pardon himself and show contrition.

"I think if he had done the latter a year ago, people would have shown a greater capacity to forgive him and go on," Williams said.

The special grand jury that indicted Fletcher is to meet Monday through Thursday next week. So far, it has indicted 15 people, including Fletcher, in open court. It also has issued 14 indictments that are sealed.

Fletcher issued a broad pardon last August for everyone from his administration charged by the grand jury except himself.