Court Rejects “Unwarranted Benefit”

The Kentucky Supreme Court rejected a proposed consent sanction of a one-year concurrent suspension of a former Commonwealth Attorney who is already been subject to a five-year suspension.

The present misconduct involved submitting false evidence to a grand jury in connection with a death caused by a drug overdose

the [circuit] court explained that the Commonwealth presented false and misleading testimony to the grand jury by indicating that the text message exchange occurred “on or about January 9, 2021,” the day before Bowling’s death. The Commonwealth did not clarify that the messages were transmitted two days after her death nor that there was no evidence that the text message sent by Henderson was to Long. Boling then made the unsolicited statement about Henderson warning Long about the pills when there was no evidence that Henderson gave a warning to Long or anyone else about the pills prior to Bowling’s death. The circuit court concluded that Boling “intentionally elicited and presented false testimony in order to elevate the degree of the offense with which Henderson was to be charged. This conduct was a flagrant abuse of the grand jury process.” The circuit court dismissed Henderson’s indictment without prejudice

Why the concurrent sanction was rejected

In essence, proposing that the sanction in this case run concurrently with the five-year sanction previously imposed provides an unwarranted benefit, effectively resulting in no separate sanction for this misconduct. Boling’s misconduct in the Henderson matter is serious and deserving of its own punishment, not a punishment tacked on to a previously imposed punishment. Again, Boling was aware of the misconduct proceedings against him at the time he presented the Henderson matter to the grand jury and nevertheless presented false testimony to secure an indictment, actions that contravened our rules of professional conduct.

The prior sanction

The first disciplinary proceeding stemmed from Boling writing a pardon letter on his official Commonwealth’s Attorney letterhead on behalf of Dayton Jones, who pled guilty to first-degree sodomy, first-degree wanton endangerment, and first-degree distribution of matter portraying a sexual performance by a minor after he and others sexually assaulted a fifteen-year-old boy who passed out at a party. That letter made numerous unfounded and sweeping allegations about alleged improprieties within the local justice system, with statements like the prosecution did not “pass the smell test,” the Democratic Party controlled the case, and alleging that there was corruption between the local democratic party and the Attorney General’s office.

(Mike Frisch)