LAWRENCEVILLE — A string of high-profiles controversies over Kevin Kenerly’s political career should have allowed the district attorney to investigate corruption in a more timely manner, attorneys argued in a brief filed this week outlining why a second indictment on bribery charges against the county commissioner should be thrown out by the Georgia Court of Appeals.
Besides, the brief said, the special grand jury testimony of a developer -- which District Attorney Danny Porter said should begin the clock on the statute of limitations in the case -- actually clears the commissioner.
The 45-page brief is the latest move in the case against Kenerly, who was indicted in the final months of his third term in office in 2010 on allegations that he accepted a $1 million bribe to get developer David Jenkins a more favorable deal on a county land purchase.
An original indictment was thrown out by the Court of Appeals, saying the special grand jury does not have the authority to issue indictments. Now, attorney Pat McDonough said the second indictment should be thrown out for two reasons: first, it was issued while the state was still arguing the first indictment's validity before the state Supreme Court, and, second, the statute of limitations had expired.
In his argument, McDonough outlines a lengthy business relationship between Kenerly and Jenkins, and points out that Porter was aware of the relationship and did not intend to investigate, at the time, allegations made when a DVD of the two playing poker in Las Vegas circulated during the 2006 election season.
According to state law, indictments have to be issued within four years of the commission of a felony, although the state allows for "tolling" the clock in certain circumstances.
McDonough said the state had ample opportunity to look into the county's purchase of Rabbit Hill Park land in May of 2007, a deal that gave Jenkins a $7 million profit in two years.
But Porter has argued that the facts were discovered during the grand jury investigation, when Jenkins testified on Feb. 4, 2010, thus starting the statute of limitations.
In that testimony, though, Jenkins, under the protection of immunity, said that payments to Kenerly that totalled $1 million beginning months before the Rabbit Hill purchase actually involved another business deal.
He reportedly detailed a 2002 partnership on property on Grayson Highway for a project known as "Silver Oaks." In February of 2007, the men agreed to give $1 million up front instead of the original agreement of 50 percent of the profits, which were estimated at $1.5 to $2 million. Payments of $50,000 a month began that March.
"... there are only two possible ways to interpret the facts discovered after Feb. 4, 2010: one, the facts exonerate Mr. Kenerly; or, two, the State is attempting to toll the statute of limitations based upon facts that it must conclude are not true," the brief said, adding that the DVD controversy showed Porter knew of the men's business relationship.
"However the statute of limitations period does not toll until the State believes it has enough evidence to indict. ... That is not the test; the test is when did the District Attorney have enough evidence to investigate," the brief said. "In this case, there is no question that the District Attorney had enough evidence to launch an investigation on May 22, 2007, when Mr. Kenerly moved to purchase Mr. Jenkins' property, therefore, the limitation period began to run on that date."
With a two-year limitation on misdemeanors, other charges related to failing to file paperwork disclosing a business interest in a 2005 rezoning should also be thrown out, the brief said.
McDonough pointed out that Kenerly filed a letter disclosing the co-ownership during a 2003 case involving the same property, and while he did not file a new letter, Kenerly did walk out of the 2005 hearing and did not vote on the matter.
Porter said Thursday he has not had a chance to review McDonough's filing. He has 20 days to respond in court.
This week, McDonough also asked to be allowed to present oral arguments to the court.
According to state law, if the second indictment is thrown out, a third cannot be issued on the same charges.