No Discipline For Prosecutors

The Kentucky Supreme Court found no proven misconduct by criminal prosecutors in their handling of a matter where post-conviction proceedings had vacated the conviction

These attorney disciplinary cases against Perry Thomas Ryan and David Michael Williams arise from their roles in representing the Commonwealth and prosecuting Garr Keith Hardin and Jeffrey Dewayne Clark who were convicted by a jury of the 1992 murder of Rhonda Warford. After nearly 20 years of post-conviction proceedings, the Meade Circuit Court ordered a new trial, based in part upon new DNA testimony, and that order was affirmed by this Court. Commonwealth v. Clark, 528 S.W.3d 342 (Ky. 2017). The Commonwealth, acting through Commonwealth Attorneys Ryan and Williams, later obtained additional indictments against Clark and Hardin for kidnapping, which originated from the sequence of events leading to Warford’s murder, and perjury based on inconsistencies in statements the defendants made in trial court proceedings and before the parole board. The trial court ultimately dismissed those new indictments based on vindictive prosecution. Subsequently, Clark and Hardin’s defense team filed a bar complaint against Ryan and Williams and the Inquiry Commission ultimately issued four-count charges against both Ryan and Williams in December 2019.

These cases proceeded through the disciplinary process for several years and have included a petition for writ of mandamus to this Court in 2022. The Trial Commissioner, in a confusing opinion, ultimately found Ryan and Williams guilty on all four counts. The Board of Governors disagreed and concluded that no discipline was warranted for either prosecutor. Bar Counsel appealed to this Court.

In reviewing this case, we recognize the important role of prosecutors in representing the Commonwealth, and the duties they have to both the public and our justice system. This Court takes seriously our role to guard against abuse of the criminal process and ensuring that attorneys abide by all rules governing the practice of law in this Commonwealth.

Bar Counsel had charged four counts of alleged misconduct.

The defendants’ counsel filed bar complaints against Ryan and Williams in early 2019 based on their actions in procuring the additional kidnapping and perjury indictments and the trial court’s vindictive prosecution finding. The Inquiry Commission issued a four-count charge against both Ryan and Williams, alleging violation of four rules.

The trial commissioner had applied collateral estoppel to decisions in the criminal case

The Trial Commissioner determined that Ryan and Williams violated the rules, as charged, and recommended a sanction of a 180-day suspension, with 30 days to serve and the balance probated for 2 years. Ryan and Williams appealed and the Board of Governors remanded the matter to the trial commissioner for a new evidentiary hearing, concluding that the application of collateral estoppel was error. The Board reasoned that the Trial Commissioner, as initial fact finder, should fully hear and consider all testimony and that each party should be afforded the opportunity to effectively cross-examine witnesses and fully present their case.

The commissioner found misconduct on remand

Ryan and Williams appealed to the Board of Governors. After oral argument and careful review, the Board concluded that the findings of the Trial Commissioner were not supported by substantial evidence and were clearly erroneous as a matter of law. The Board voted fourteen to three to reject the second report of the Trial Commissioner and consider the matter on a de novo basis. For each Count, the Board voted as follows:
Count I: Guilty (0); Not Guilty (17)
Count II: Guilty (9); Not Guilty (8)
Count III: Guilty (0); Not Guilty (17)
Count IV: Guilty (0); Not Guilty (17)

Because the requisite number of guilty votes is eleven, the Board was unable to make a recommendation on discipline as to Count II. Bar Counsel filed a notice of review with this Court pursuant to SCR 3.370(8).

The court here agreed that no charge was supported by clear and convincing evidence

In addition to the findings above, and our thorough review of the lengthy procedural history in this case, this Court does not find sufficient evidence to recommend discipline for Ryan and Williams. We note generally that both Ryan and Williams have maintained lengthy, unblemished careers as prosecutors with no history of prior discipline and a clear dedication to public service. Ryan represented the Commonwealth in litigating this case for approximately twenty-two years, and Williams assisted with the case since 2015. While appreciating the serious concern of overzealous or vindictive handling of criminal matters by the state, and the KBA’s and this Court’s role in ensuring fair and unbiased handling of criminal cases, the KBA has not met its burden.

The Courier-Journal reported on the underlying prosecution. (Mike Frisch)