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The Kentucky Supreme Court accepted a consent discipline one-year suspension for an attorney’s misconduct as a prosecutor

Boling’s misconduct in the Henderson matter was serious and deserves its own punishment, rather than a punishment running concurrently with 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. After considerable deliberation, we accept the negotiated one-year sanction to run consecutively with the previously imposed discipline.

The misconduct involved presenting false evidence to a grand jury in a death by overdose investigation

[Defendant] Henderson filed a motion to dismiss the indictment. In a May 4, 2022 order, the Christian County Circuit Court explained that during Henderson’s grand jury proceedings, the Commonwealth relied on two text messages, purportedly from Henderson to Long, in an effort to show that Henderson was aware of, and consciously disregarded, the risk of Corbin consuming the pills he sold to Long. But the circuit court noted that the Commonwealth knew, prior to its presentation to the grand jury, that the text messages from Henderson’s phone were not sent to Long’s known cell phone number, and that the messages were sent two days after Corbin’s death. The messages therefore could not form a basis for an allegation that Henderson acted wantonly with regard to Corbin.

The court explained that the Commonwealth nevertheless 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 Corbin’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 Corbin’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.

Respondent had previously been suspended for five years. (Mike Frisch)