WHAT BENEFIT WOULD CHESLEY RECEIVE IF HE IS ABLE TO PROVE THAT HIS PROSECUTOR’S HUSBAND WAS AFFILIATED WITH ANGELA FORD AND RECEIVED A DISTRIBUTION OF FEN PHEN FUNDS?

 

LawReader notes that there is no confirmation that the husband of former Bar Counsel Linda Gosnell’s husband was on the Fen Phen distribution list in behalf of Angela Ford.

Chesley does not make that allegation as a fact in his public pleadings. He does cite in his pleadings that Leslie Rosenbaum, the husband of Linda Gosnell, advertised on his website in 2007 that he was experienced in “fen phen” and “mass drug tort litigation”.

In pleadings filed by Stan Chesley in the Boone Circuit Court civil case, he has submitted proposed Interrogatories which seek discovery of whether or not KBA personnel or their family members were on the Angela Ford Distribution list. A new filing by Chesley in the Kentucky Supreme Court states that he believes from the record that Ford made a distribution to “five” different lawyers. Ford has not disclosed the identity of any lawyers to whom she made a distribution.

So far Chesley has sought discovery from the Ky. Supreme Court (in his pending KBA discipline appeal), the Boone Circuit Court in the Fen Phen civil action styled Abbott v. Chesley, and in the U.S. District Court, to discovery the identity of the five lawyers.

The speculation Judge Reeves refers to, is apparently referring to Chesley’s desire to find out if the husband of KBA’s former Bar Counsel (Linda Gosnell, the prosecutor in his attorney discipline case), is one of the five lawyers who received a distribution of Fen Phen monies from Angela Ford.

Chesley’s argument for discovery of the possible distribution of monies to the Bar Counsel’s husband should be considered in light of the possibility that discovery may show, that his KBA prosecutor may have violated KRS 522.020, or KRS 522.030 and KRS 15.733(2)(c) & (d) which provides in pertinent part as follows:

See: Thorpe v. Com., 295 S.W.3d 458 (Ky. App., 2009)

“KRS 15.733(2)(c) & (d) provide in pertinent part as follows:

[a] prosecuting attorney shall disqualify [her]self in any proceeding in which … a member of [her] immediate family … [i]s known by the prosecuting attorney to have an interest that could be substantially affected by the outcome of the proceeding; [or] [i]s to the prosecuting attorney’s knowledge likely to be a material witness in the proceeding[.]

(emphasis added). Since immediate family is not defined by the statute, we are to construe it according to its common, everyday meaning. Wilfong v. Commonwealth, 175 S.W.3d 84, 96 (Ky.App.2004).

Black’s Law Dictionary defines it as “a person’s parents, spouse, children, and siblings.” at 620 (7th ed. 1999).”

 

KRS 15.733 Disqualification of prosecuting attorney — Appointment of a special prosecutor.

(1) For the purposes of this section the following words or phrases shall have the meaning indicated:

(a) “Proceeding” includes pretrial, trial, appellate review, or other stages of litigation;

(b) “Fiduciary” includes such relationships as executor, administrator, conservator, trustee, and guardian;

(c) “Financial interest” means ownership of a legal or equitable interest, however small, or a relationship as director, adviser, or other active participant in the affairs of a party, except that:

(2) Any prosecuting attorney shall disqualify himself in any proceeding in which he or his spouse, or a member of his immediate family either individually or as a fiduciary:

(a) Is a party to the proceeding, or an officer, director, or trustee of a party;

(b) Is acting as a lawyer in the proceeding;

(c) Is known by the prosecuting attorney to have an interest that could be substantially affected by the outcome of the proceeding;

(d) Is to the prosecuting attorney’s knowledge likely to be a material witness in the proceeding;

(e) Has served in private practice or government service, other than as a prosecuting attorney, as a lawyer or rendered a legal opinion in the matter in controversy;

(f) Has a financial interest in the subject matter in controversy or in a party to the proceeding, or any other interest that could be substantially affected by the outcome of the proceeding.

(3) Any prosecuting attorney may be disqualified by the court in which the proceeding is presently pending, upon a showing of actual prejudice.

(4) In the event that a prosecuting attorney is disqualified, he shall certify such fact in writing to the Attorney General who may direct another Commonwealth’s attorney or county attorney or an assistant attorney general as a special prosecutor to represent the Commonwealth in that proceeding.

Effective: July 1, 1982

 

If a prosecutor was in violation of KRS 15.733, then it is possible that the criminal code might apply to a failure of the prosecutor to recuse herself.

 

See the following offenses:

 

KRS 522.020 Official misconduct in the first degree.

(1) A public servant is guilty of official misconduct in the first degree when, with intent to obtain or confer a benefit or to injure another person or to deprive another person of a benefit, he knowingly:

(a) Commits an act relating to his office which constitutes an unauthorized exercise of his official functions; or

(b) Refrains from performing a duty imposed upon him by law or clearly inherent in the nature of his office; or

(c) Violates any statute or lawfully adopted rule or regulation relating to his office.

(2) Official misconduct in the first degree is a Class A misdemeanor.

Effective: January 1, 1975

History: Created 1974 Ky. Acts ch. 406, sec. 187, effective January 1, 1975

 

522.030 Official misconduct in the second degree.

(1) A public servant is guilty of official misconduct in the second degree when he knowingly:

(a) Commits an act relating to his office which constitutes an unauthorized exercise of his official functions; or

(b) Refrains from performing a duty imposed upon him by law or clearly inherent in the nature of his office; or

(c) Violates any statute or lawfully adopted rule or regulation relating to his office.

(2) Official misconduct in the second degree is a Class B misdemeanor.

Effective: January 1, 1975

History: Created 1974 Ky. Acts ch. 406, sec. 188, effective January 1, 1975

 

SCR 3.130(3.8) Special responsibilities of a prosecutor

The prosecutor in a criminal case shall:

(c) make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense, and, in connection with sentencing, disclose to the defense and to the tribunal all unprivileged mitigating information known to the prosecutor, except when the prosecutor is relieved of this responsibility by a protective order of the tribunal;

History: Amended 1982 Ky. Acts ch. 141, sec. 42, effective July 1, 1982. — Repealed and reenacted 1980 Ky. Acts ch. 188, sec. 10, effective July 15, 1980. — Created 1976 Ky. Acts ch. 59, sec. 1.

Formerly codified as KRS 26A.250.

Note: 1980 Ky. Acts ch. 396, sec. 45 would have amended this section effective July 1, 1982. However, 1980 Ky. Acts ch. 396 was repealed by 1982 Ky. Acts ch. 141, sec. 146, effective July 1, 1982

 

 

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