In this 2010 file photo, former Gwinnett County Commissioner Kevin Kenerly arrives at the Gwinnett County Jail to turn himself in after being indicted on charges he took a $1 million in bribe to help a developer get a deal. Kenerly posted bond and was released shortly after.
LAWRENCEVILLE — Attorneys for Kevin Kenerly on Monday filed a motion to quash the indictment against the embattled former Gwinnett County commissioner.
A grand jury indicted Kenerly for the second time in August of 2011, just weeks after a Court of Appeals decision threw out the bribery indictment previously issued by a special grand jury. In the filings made late Monday, his attorneys argued that the trial court which enabled the second indictment lacked the jurisdiction to do so.
Authority should have remained with the appellate court, which was still reviewing the issue of whether or not the special grand jury had the power to indict Kenerly in the first place, attorney Pat McDonough said.
“(The indictment) is invalid as it was returned by this Court at a time when it lacked jurisdiction,” the motion to quash said.
The appellate court ultimately held that the grand jury did not have the right to charge Kenerly, and the initial indictment was quashed. Jurisdiction was not “reinvested” in the trial court until eight months after the second indictment, McDonough said.
Kenerly has denied the charge that he accepted a $1 million bribe from a developer to enable a favorable transaction when the county purchased land for an expansion to Rabbit Hill Park, and that he also failed to disclose a financial interest in two zoning cases dealing with the same developer.
Attorneys also filed Monday a plea at bar, arguing that the statue of limitations has run out on the bribery charge and one of the counts of failure to disclose a financial interest.
In addition, McDonough and colleagues at Duluth firm Andersen, Tate and Carr filed a general demurrer, claiming that the state law regarding failure to disclose financial interests has been repealed. The law was repealed in its entirety on April 19, the motion stated.
“Pursuant to the general common law as adopted by the Georgia Supreme Court, the repeal ... terminates the present prosecution on Counts 2 and 3 of the indictment,” the motion said.
District Attorney Danny Porter could not immediately be reached for comment Monday evening.
In an email sent to the Daily Post, McDonough maintained his client’s innocence.
“...we want to reassert our position: Kevin Kenerly is innocent,” he wrote. “Every document we have reviewed and each witness we have interviewed confirms this. Nonetheless, we must continue to fight this prosecution at every stage, and therefore, filed our motions in accordance with the law.”
Georgia law stipulates that if an indictment is thrown out twice, it cannot go forward a third time.