Kenerly case brief filed in appeals court

Photo by Kristen Ralph

Photo by Kristen Ralph

LAWRENCEVILLE — Then-Commissioner Kevin Kenerly’s Fifth Amendment rights were violated by a special grand jury, which issued an indictment against him on bribery charges last year, a brief filed Monday with the Georgia Court of Appeals contends.

The brief, filed by attorney Patrick McDonough, argues that special grand juries are empowered to either investigate or indict — not both. So the special grand jury impaneled at the request of District Attorney Danny Porter to investigate questionable land purchases by the government stepped beyond its boundaries in indicting Kenerly, McDonough argues.

In fact, McDonough includes one portion of the transcript as evidence that Porter knew the special grand jury could not indict:

“... if it turns out that way, you’re not going to be indicting anybody; you know, you’re just not. You have a limited purpose, and it doesn’t include indicting anybody, but it could be — it could be that you recommend indictments — ... but that’s as far as you’re going to be able to go; okay. So — so for those of you who are anticipating voting on indictment, you won’t be doing that; all right.”

Porter said Monday that he originally agreed that the special grand jury could not indict, but he researched the issue and got the opinion of the Prosecuting Attorneys Council of Georgia, which believed the indictments could be issued.

McDonough also argued that the transcripts reveal that Porter and the jurists made inappropriate comments about Kenerly’s decision to invoke his Fifth Amendment right against self-incrimination.

“He did not get a fair hearing in front of the grand jury,” McDonough said. “A fundamental right like that can’t be ignored.”

In the brief, he wrote that prosecutors cannot comment on a decision to invoke the protection in a trial and should not be allowed to comment in a grand jury setting as well. But Porter did not stipulate that invoking Fifth Amendment rights is not an admission of guilt, and jurors seemed to have a negative feeling, according to the transcript.

“I’m not sure I’m under an obligation to do that,” Porter said, adding that he believed the grand jury was made aware that Kenerly invocation of the right — which happened twice during the grand jury proceedings — was not an admission.

Porter has 20 days to file his own brief with the Court of Appeals.