LAWRENCEVILLE — A Friday motions hearing in the bribery case of former Gwinnett County Commissioner Kevin Kenerly revealed that prosecutors have granted immunity to the developer who allegedly slipped Kenerly $1 million. It’s a move prosecutors call necessary, and one the defense says has all but exonerated the embattled government leader.
In a hearing before Superior Court Judge Karen Beyers, Kenerly’s defense attorney, Pat McDonough, argued that a second indictment against his client should be quashed because it overlapped with a previous indictment tossed out by an appeals court — and because the statute of limitations on bribery and other charges has already lapsed.
Gwinnett District Attorney Danny Porter argued the second indictment, brought in August 2011 by a regularly empaneled grand jury, never put Kenerly in danger of double-jeopardy, or “facing a two-front war” in Gwinnett Superior Court and the appeals courts.
The first indictment, brought by a special purpose grand jury that Porter assembled to investigate land deals, was void before the second was brought, Porter argued.
As for the statute of limitations, Porter believes the four-year requirement to prosecute for bribery and two misdemeanors that Kenerly faces should have begun only when prosecutors received copies of developer David G. Jenkins’ business records in February 2010. Porter believes those records prove that criminal land deals transpired.
McDonough counters that the four-year limitation should have begun in May 2007 at the latest — making the more recent indictment void — when the county purchased land for an expansion to Rabbit Hill Park in Dacula. Prosecutors allege Kenerly was paid 20 installments of $50,000, totaling $1 million, for his vote on that matter.
Beyond that, McDonough argued that Porter should have launched an investigation into Kenerly and Jenkins’s dealings in 2006, when a DVD was widely circulated that showed the two gambling together in Las Vegas. Porter’s knowledge of potential wrongdoing then should have started the “clock” on the statute of limitations, McDonough said.
Porter said no evidence of criminal wrongdoing was found at that time. All dates besides Feb. 4, 2010 — when Jenkins’s business records were turned over to prosecutors — are irrelevant, Porter said.
“It’s not against the law to go to Las Vegas and sit next to Jenkins and play cards,” he told the judge. “It is illegal to accept $1 million in exchange for your official actions.”
In order to secure those documents, Jenkins was granted immunity that February in return for his cooperation and testimony regarding his business dealings with Kenerly, Porter said after the hearing.
That cooperation thus far has been a boon for Kenerly’s defense, McDonough told the Daily Post, because court paperwork that outlines transactions involving Jenkins and Kenerly makes no mention of bribery, calling the $1 million legitimate and related to another deal.
“If (Jenkins) said he bribed Kenerly, he is protected by immunity,” McDonough said. “That’s not what he said — he said he never bribed Kenerly.”
Porter said he doesn’t believe everything that Jenkins has told prosecutors, noting that Jenkins could be prosecuted if he violates his immunity agreement.
Jenkins, a residential land developer and home builder in Gwinnett, owned Winmark homes.
After 16 years, Kenerly resigned as Gwinnett’s longest-serving commissioner in 2010, when he was first indicted on bribery charges. He also faces two misdemeanor counts of failure to disclose a financial interest in two zoning cases dealing with the same developer.
Kenerly made his career in residential real estate, which was ravaged by housing and financial crises in recent years. He filed for bankruptcy protection last year, citing less than $50,000 in assets and $3.5 million in debt. That case was dismissed at his request last month.
McDonough argues that the $1 million that provides the basis for the re-indicted bribery charge did not involve the Dacula park, but a townhome development called Silver Oaks in Lilburn. In a commission vote on that development, “everyone concedes Kenerly followed the law by filing his letter stating he had a financial interest, walked out of the board vote and did not vote,” the attorney said.
After the hearing, Kenerly expressed relief that the arrangement between Jenkins and prosecutors was made public. He reiterated that the Las Vegas trip was merely a gathering of friends, saying he paid the group’s $20,000 tab at Ceasars Palace. He pointed to the absence of bribery allegations by Jenkins.
“That’s what confuses me — I’m trying to figure out who (prosecutors believe) bribed me,” Kenerly said.
The judge will consider arguments about the motions filed by the defense and make a decision later. If the second indictment is quashed, state law would prevent Kenerly’s prosecution.
Otherwise, Porter says, he hopes to try the case early next year.