FRANKFORT -- Attorneys for Gov. Ernie Fletcher say he shouldn't be tried for allegedly basing personnel decisions on political considerations because Democrats did the same thing for decades without punishment.
In a 96-page motion to dismiss filed by Fletcher's lawyers last week, his attorneys say the crimes Fletcher is accused of are the same ones committed by Democrats for years.
"One of the most honored and respected precepts in American jurisprudence is that a person cannot be singled out for prosecution under a law that, over many years, has not been enforced against anybody else," the motion reads.
Fletcher was charged with conspiracy, official misconduct and political discrimination stemming from allegations that he gave protected state jobs to political allies. He pleaded not guilty during an arraignment last month, and is scheduled to be back in court Nov. 8.
The special grand jury overseeing the investigation has issued 29 indictments, 14 of which remain sealed. Fletcher announced in August that he had pardoned his entire administration -- other than himself -- for any charges that could result from the investigation.
Fletcher's attorneys say the case against the governor is the first of its kind to be prosecuted by the state's attorney general's office. In the motion, his attorneys argue that the state Personnel Board has found 65 instances of political discrimination against workers since 1972. None of those cases was prosecuted by the attorney general's office.
For example, the board found that there had been a "mass removal" of Republicans in 1972 when Democrat Wendell Ford succeeded Republican Louie B. Nunn as governor, the motion states.
Legal experts say the brief provides a fascinating history of patronage in Kentucky. But Indiana University law professor Craig Bradley and veteran Frankfort lawyer Guthrie True say the selective-prosecution argument probably will fail.
For one thing, they said, Fletcher undercut it by pardoning the others charged with similar crimes; if not for that, the prosecution of Fletcher wouldn't seem so selective.
Fletcher's lawyers also contend that the statue of limitations for prosecuting misdemeanors has expired. According to the motion, only the firing of Transportation Cabinet Deputy Inspector General Mike Duncan on May 13, 2005, came within a year of the indictment, which was issued May 11, 2006. And because Duncan was still a probationary hire at the time, his firing was not illegal.
The motion is scheduled to be ruled on during an Aug. 11 hearing.