The following post is from a prominent Fort Wayne attorney who chose to remain anonymous due to client interests.
Prosecutorial Abuse in the Name of Justice, for a Political Final Solution
The recent and very compelling Motion to Dismiss by Matt Kelty’s Attorneys was made available on a local blog—www.fortwaynenews.com. After having the chance to review it I am quite convinced that the process followed to obtain indictments of Matt Kelty was deeply flawed and at very least suspicious in the manner in which it was pursued.
Indiana Code 3-6-5-31 provides a very clear administrative process for the investigation and referral of Election law violations. The process provides “If in the judgment of the board after affording due notice and an opportunity for a hearing, a person has engaged or is about to engage in an act or practice that constitutes or will constitute a violation of a provision of this title or of a rule or order issue under this title, the board shall take the action it considers appropriate under the circumstances, including referring the matter to the attorney general or the appropriate prosecuting attorney.”
The Allen County Election Board is very clearly charged with conducting a hearing, with due process, and making “the” determination if this matter should be referred to the Prosecutor for further action. What is even more striking, in my opinion, is that the statute further provides in Indiana Code 3-6-5-34 that “Except as expressly provided by statute, an appeal may be taken from a decision of a county election board to the circuit court. An appeal taken under this section must be filed not later than thirty (30) days after the board makes a decision subject to the appeal.”
If a decision were made by the Election Board adverse to Mr. Kelty (which it was not) he would have the opportunity to appeal to the Circuit Court for review. What exactly happened to that administrative appeal opportunity here? It appears to have been taken from him. Kelty lost some due process rights along the way and nobody seemed to notice, including the Prosecutor, the Republican Party of Allen County, the local newspapers, and the blogosphere. Either the law means something and is equally applied to everyone, or it doesn’t mean a thing. Which is it?
After the duly appointed administrative body charged with review of these matters, the Allen County Election Board, made a determination that no violation had occurred, another group referred this matter to Karen Richards, Chief Allen County Prosecutor. Ms. Richards did not appear to review the matter or the associated law but cavalierly rushed to refer the matter to a Special Prosecutor, without even considering administrative due process. The Special Prosecutor then formed a grand jury without regard for administrative due process and proceeded to indict Matt Kelty for the very violations the Board charged with making such decisions (the Allen County Election Board) determined he did not violate. The failure of the State to recognize the statute authority of the decision of the Election Board, and the denial of Kelty’s due process rights, makes all the indictments against him fruit of the poisonous tree, which can not be used against him.
If the Internal Revenue Service had suspected you of some criminal mischief on your tax returns and asked you to submit to an administrative review by their duly appointed body, and if that body had determined that you had done no wrong, would it then be appropriate for some disgruntled Citizen to refer the matter to the Federal Prosecutors in order for them to appoint a Special Prosecutor to sequester a grand jury in order to indict you on the very charges that the IRS had acquitted you? Obviously not.
The matter is not just, and it is not clean. Administrative remedies have not been exhausted. It appears to me that Democrat and Governing Board Member of Common Cause of Indiana, Andy Downs, and his organization, Common Cause of Indiana, could have appealed the decision of the election board to the Circuit Court—they did not.
Certainly with all the praise lauded on Prosecutor Karen Richards for capability, one would expect her to live up to all the hype, and appropriately recognize the administrative due process, but instead it appears she let her own personal opinions and motives cloud her objectivity to abuse her office to punish a candidate that had the audacity to run against the selected candidate she endorsed in the primary.
This was certainly not an afterthought.
Just seven days after the Kelty primary election victory, a group of over thirty Republican Party regulars convened at the Park Place Grill to cathartically vent about the Peters primary loss. It was here Prosecutor Richards first introduced the idea of seeking criminal prosecution of Kelty according to a number of significant Kelty supporters who attended the gathering. According to a source, shortly after the primary election, Prosecutor Richards implored Police Chief Rusty York to initiate an investigation into the Kelty campaign, he refused. Finally, she reportedly colluded with Democratic Election Board Member, Andy Downs, on the complaint from Common Cause, according the same source. Criminal behavior? No. If true, smarmy, destructive, vindictive political hackery? YOU BET! Vendetta wrapped up to look like justice. We deserve better.
The political drum has been beat quite loudly and incessantly here on this matter, but this is not about “JUSTICE,” it is about “POLITICS.” It is unfortunate that a good man’s family, campaign and character could be smeared so efficiently by what appears to be a political machine enmeshed in the fabric of Allen County government, intent on denying the voters of Fort Wayne their choice, and stifling a new era of change for the City.
Certainly the charges against Kelty are defective if the rule of law is to be followed, but the propagandizing by the media and Kelty opponents has created a fog of doubt around the candidate that may allow his opponent to slip into office. Voting against a candidate rather than for the future of the City, only to have the embattled candidate prevail in court will create buyers remorse and one heck of a hangover for the voters of Fort Wayne. Voters should not be fooled.
Last 5 posts by AWB
- Get your condo! - Financing is available for The Harrison - January 5th, 2009
- What does this define? - January 4th, 2009
- An incredible story - January 3rd, 2009
- Letter to the big three - January 2nd, 2009
- What is America's true form of government? - January 2nd, 2009
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I was always highly suspicious of Karen Richard’s duplicity in this affair, but if this lawyer is accurate in his implications, Karen was proactive in getting these indictments in place. Why? She sure seemed locked and loaded to me when the Common Cause complaint came through. If as the N.S. said this election will hinge on the indictments, then this has to be the push next week.
Ken
I just emailed the article link to my address book, with the simple line ” take it viral”
I guess that I failed to meet with Karen Richards at a downtown watering hole - and that’s why my letter to her about the law-breaking by our redevelopment department received a “dead-on-arrival” reception! What a difference politics makes. And we have to wait two years to vote this one out! John B. Kalb
Im no lawyer, but I’m picking up what your throwing down. Good article, I was kind of thinking that all along. Lets just hope more people think like me, and show up to the pools next week
What seems like months ago this was one issue that I wondered about. The Election Board is the first place to stop if someone feels the election law has been broken.
Regardless to the outcome, even though the state law does not appear to say one can within the election laws, appeal their verdict. But for the sake of it, let it said it could be appealed.
Their ruling of the Election Board was not appealed to a formal court. Instead a new case was built.
The questions now come up;
1- Does the Election Board have any power?
2- Can anyone, not liking the decission of the Election Board, file a complaint within the court system?
3- Is there a real appeal process of anything the Election Board decides?
4- Because the Election Board hearing was a formal hearing and Kelty was not found guility of any of the charges does this amount to double jeopardy?
5- If the Election Board is found to have no powers, then the laws that they are chraged with enforcing, are mute.
I don’t have the answers and that is what we have courts for. I will find it an interesting read of the court findings in these filings.
I have no formal law background outside of a few business law classes but these issues seem real to me.
An oldie but goodie post on the subject.
With regard to your discounting the charge of “political motivation”, I think the average citizen can make a pretty good assessment of whether or not this is true by simply reviewing the sequence of events. I think a recent post broke it down best where it said (and I paraphrase),
“I do not think it was a coincidence that Democrat Andy Downs after being voted down on the election board on the Kelty matter, resigns as a member of the Governing Board of Common Cause of Indiana the DAY BEFORE they file a complaint against Kelty with the Allen County Prosecutor. And certainly anyone can’t honestly think that the time between the filing of the complaint, the passing on it by the County Prosecutor (who campaigned BTW on “Not hiding behind grand juries.”), the request for a Special Prosecutor, the approval by Judge Fran Gull, the identification of Prosecutor Dan Sigler and his acceptance of the case, all within hours is the normal speed at which justice is served in Allen County.”
I think most Fort Wayne voters believe, there are no coincidences, and certainly they can connect the dots and make an informed judgment, and determination of the truth based on the facts. Can’t you?
i seem to recall everyone in both the legal world and the media stating that it would only take one (1!) complaint filed with the prosecutor’s office to require a criminal investigation of kelty’s actions.
when that one complaint was filed, and yes, it was filed by common cause, the prosecutor did what was appropriate in the situation - assign a special prosecutor to the case.
this entire concept of some great big conspiracy is completely irrational! it’s a lot of effort to go to just because they (the republican party) might not like the guy, isn’t it? wouldn’t it make more sense for them to get their candidate into office and then pressure him to stick to the party agenda? or anything other than this circus?
the indictments are the least of the reasons kelty is not getting my vote. i’ll be voting henry because nothing kelty has said or done in this election cycle has given me any indication that he’s fit to be mayor. nothing. he may be a nice catholic guy and at the end of the day that should be enough for him to pick up and continue on with his business, but it’s not the sole qualification for mayor.
The “legal world and the media” have no clue because they don’t work in the area of administrative law but Fort Wayne Anonymous if its okay with
you to drift along and let people invent rules, I guess its okay with me.
Fort Wayne appears to have an affinity for circuses.
FWA…. I can’t help but think that you are naive. First, the prosecutor’s office didn’t review their complaint…oh wait, I think she probably glansed at it… they also did not defer them to the process of appealing the Board’s decision. Both are things she should have done but did not do. It is the ELECTION BOARD that defers to the prosecuting attorney when they see a violation has occurred. The complaint by common cause did not recognize this governing board as one with authority to make rulings about state campaign laws. Fortunately, the judge in this case will recognize the decision passed down by the election board.
Secondly, some of the greatest leaders of our time had no political experience before entering office. Get out the history books. If your sole qualifications for mayor is whether or not they were on city council, or held some appointed position of importance, then your requirements are pretty narrow-minded. Great leadership is so much more than that. Opinion mine.
I think the issue here is that the appropriate adminsitrative due process that is, by law (Indiana Statute), under the authority of the Election Board for this matter, was short circuited by the local County Prosecutor in her zeal to obtain a directed result.
If it is determined that the charges are baseless as presented in this piece, and the candidate exonerated, but the resulting actions served to influence the outcome of the election, what recourse do the voters have, where is the court of final appeal to right this wrong? What if the people are denied as a result? Where is their due process?
If this were to stand, who is to say that as a matter of course, a vindictive Prosecutor could not again prefer charges or initiatiate an investigation against a political foe in an effort to influence the outcome of an election in the future. Unjustly circumventing due process, abusing the power of the office to direct a desired political outcome.
Though this is certainly not new, do we have to accept it as a matter of course in Fort Wayne? I believe this is a dangerous precedent being set. If I have a fear, it is that regardless of the strength of the argument in the motion to dismiss, the system and those attendant to it may feel compelled to ignore it in order to preserve themselves, and vindicate their actions and positions.
I hope my fears are unfounded.
Anyone besides myself think it’s time for a recall of our beloved prosecutor? I’m just thinking here.
Maverick: “You can be my deputy mayor anytime.”
Iceman: “Bull, you can be mine.”
(the two hug)
Fade to black.
carol,
i appreciate your opinion, i just can’t come to understand it. the election board made their decision and then someone else referred the issue on to the prosecutor for investigation. since she had supported kelty’s opponent, it would’ve been inappropriate for her to run the investigation, she did the appropriate thing - which is to bring in a special prosecutor.
where was this argument months ago? the fact that it has surfaced today of all times makes me feel like it’s a desperation move. i have not heard anyone - anywhere - argue the lack of due process until today.
finally, carol, i agree that being qualified for mayor doesn’t have anything to do with prior political experience. my problem with kelty is he has repeatedly said he was in the dark - totally unaware - of several events that have been publicly discussed. there was the first survey that started it all, then there was the kake, then there was the radio ad - when i hear about kelty’s third and fourth public statements after the ad was aired, in which he claimed not to have had the time to listen to it, it concerns me. if i were kelty, i would make a minute available to listen to what was said so i could address it when, inevitably, the media i was speaking with would ask.
if i take kelty at his word, which i am trying to do, he strikes me as someone who certainly hasn’t seemed to have his eye on the ball at all times during this campaign. and if he can’t control how his campaign is run, how can he control the city? (and if you’d like to argue that he’ll bring on qualified people to assist in managing various mayoral responsibilities, i’d point out that he doesn’t seem to have brought on very good people for his campaign…)
uh..opinion mine…whatever that’s supposed to mean.
finally, anon @7:32 - the legal world doesn’t work in administrative law? once again, i have to say i am shocked that no one has argued the lack of proper due process until today…surely someone who works in administrative law would have spoken out at some point, right?
I have had my belief for some time but not being an lawyer I had and have no clue if is true. The judge will rule and I will live with it.
I have stated nearly from the date the charges where filed that I did not think it would result in him being found gulity.
In fact, even if it does go to trial I believe when it is all done he will walk away a free man. The reason is the lack of intent on his behalf.
The GOP Exec. Com. may feel like he lied to them. Well boo hoo for them! They have no legal right to even ask the questions let alone tell them anything. That was nothing but sour grapes by a few!
With regards to Karen Richards. While I do not care for her in the office she holds I fully understand what she did.
However, if Sigler believed he had a solid case he did not need to go to a Grand Jury. He could have directly filed charges, but he did not.
Again, I will let this play out in our court system, that I still have some faith in.
FWA,
Who are we to know if the Administrative complaint issue was not filed or argued. The problem is, that it must be argued before the same courts that are spear heading the current issues before them. A court, a judge and a prosecutor are not going to admit they are wrong.
As I said before, there are compelling arguments in the complaint. I believe due process was one of them, but Judge Gull has to make a decision first on whether she feels it is right. Her only motivation for making the right decision in this case is that if she makes a wrong decision purely for political reasons, it will be overturned in a higher court and her “political” career would be ruined in the process.
The thing that surprises me to this point is we have not gotten our October surprise. Is it possible we hear from the court on Halloween? If not Halloween then before the election? I would not be surprised if we hear something, but who knows what we will hear.
As for holding Karen Richards accountable…only the voters can do that in two years unless someone can prove prosecutorial misconduct and then I believe only the State Attorney General can step in and bring charges.
FWA….
Matt Kelty is our family’s choice for mayor because we are unhappy with the way our city is moving. We support downtown revitalization, but not THIS way. We would like them to fix the sewer problem, clean up the rivers, and develop the rivers. That should have been numero UNO. Have you ever been to places like San Antonio and the Riverwalk down there? It’s awesome.
But this 2nd baseball stadium? Give me a break. Government run, taxpayer subsidized projects that benefit outside investment companies I DO NOT SUPPORT. A streamlined city government that minds the taxpayer dollars is what I want. Those are the issues I am voting on.
Not whether Matt’s responsible for the cake, or the tv ad or a zogby poll that I easily could have commissioned without Matt knowing it.
When you find a candidate who’s never made a campaign mistake, let me know. The newspapers have blown these silly stories out of the water, and unfortunately, folks have fallen for it.
FWA anonymous
Perhaps one of the reasons we have not brought up the due process until now is that us blogger types didn’t fully make the connection to the phrase “due process”. We have been harping since June over the way the indictments came about. But what has changed is that the motion to dismiss is now public and we have had a chance to read it. The lawyers who put it together finally spelled it out for us, and once that occurred, it clicked in our brains and we had a “duh” moment. I’m not saying everyone missed it, I’m sure the Kelty team didn’t, but they had some special channels they had to follow because it was a legal matter. And those that put the plan together were most likely aware of it, but a political tool is a political tool. Franklin D. Roosevelt once said “In politics, nothing happens by accident. If it happened, you can bet it was planned that way.” I believe him.
Ken
>Fort Wayne appears to have an affinity for circuses.
Don’t forget bread. (Sunbeam!)
Bread and circuses.
Ms. Popp, how much $$$ have you given Kelty? Is it right to BUY an election? Are you embittered by the fact that the tens of thousands of dollars donated by the Popp family will have been utterly wasted on a losing campaign? I wonder if Kelty will ever pay back Rost for that”loan.”
Times are tough in the Kelty camp we can tell. Will the 5 or 6 whitebread richies still carry Matt’s banner after he loses? I doubt it. Better hurry up and get out that checkbook time’s running out! The funny thing is, if this is a political witchhunt then what does it say that someone’s railroaded by their own party? Because the dems definitely weren’t behind this one. If you guys wanted to buy an election, you should have gotten the BIG money from Don Willis who I know could afford it!
The election board voted on party lines not to forward to prosecution. No surprise there. That’s like saying because a black man is found guilty that should be the end of the discussion. Even if the jury were all members of the Ku Klux Klan.
That’s like saying since the Blackwater guards were offered immunity from the Bush administration there should be no investigation of the execution of 17 innocent Iraqis. Political motivation, it seems, is okay as long as it’s used to cover up crimes for republican’s sake, but it is not good when it simply seeks to resolve questionable behavior. What Kelty did may or may not have been illegal, but he lied about it afterward- giving a black eye to himself and the GOP. Questionable behavior that is so close to the legal fine line that an investigation must take place. That’s just despicable. Please let the justice system perform its function. Or should the rule of law, too, be under the control of the “private sector?”
To the person commenting using the handle ZZZZZ.
I have sent you an email, once I get a response your comments will appear.
Looks like Dan’s been correct in his assessment of this mayoral “race” all along.
And more people are “getting it” as well.
Nice job (good comments).
B.G.
(pithy as usual)
–According to a source, shortly after the primary election, Prosecutor Richards implored Police Chief Rusty York to initiate an investigation into the Kelty campaign, he refused.–
Having dealt with Chief York in a work environment, I have held a high level of respect for this man! While I know there has been a level of frustration from time to time in the department, as well as alledged hand-holding between Richards and York, this is given me a new level of respect. York may not be the greatest police chief, and he may have alterior motives for being behind Henry, but he seems to have held the higher road and did not take Matt down! I am not sure what his motives were, but if they done with a good intention, I am greatful!
It should be noted that I am aware of numerous Police Officers who are standing behind Matt come this election day! Maybe that factor would have divided the Police Force!
DNC
“–According to a source, shortly after the primary election, Prosecutor Richards implored Police Chief Rusty York to initiate an investigation into the Kelty campaign, he refused.–”
If I was Chief York I would have told Richards to take a hike, if she did such a deed. I would have told her, “Ms. Richards, you have the Allen County Sheriff and the Indiana State Police that you can take your request to. But you want me, a Democrat, to do your bidding. I think not. Have a good day!”
Of course one has to first believe that she even made such a request. Also, she would know that if she would make such a request it would come out at some time she requested such. My guess, she would have used some other person to do her bidding.
But it does make for interesting point to kick around.
Phil,
I really think you need to go back and listen to what Tom Henry had to say about “innocent ’till proven guilty”. I also think you need to look at how you structure your analogies. Just because a vote falls along party lines does not negate the validity or the legal standing of the ruling. If so, every time a vote in congress went along party line, it would have to be thrown out. And the “man”, was found innocent, not guilty.
Ken
Phil,
“whitebread richies?” Where do you get this stuff, out of a 1970’s era Black Panther manual? I happen to support Matt Kelty, and will after the election is over regardless of the outcome. Yes, I happen to be white… however not rich by any stretch of the imagination. Probably like you, I work daily for a paycheck, and I pay close attention to where it goes. It is for that reason that I oppose any government that confiscates my assets without recourse and spends them foolishly while ignoring the will of a significant majority of taxpayers. There is an entire cottage industry of people who are “plugged in” to the flow of municipal funds, and those people are getting rich off of it. (Untold millions will be spent on Harrison Square, with a huge chunk of that money going to developers, consultants, attorneys, and other people conveniently found on the list of Tom Henry’s campaign contributors. Wait until you see who’s lining up at the trough for some of the North River hog roast.) It is the people who comprise that cottage industry on both sides of the Republican-Democrat divide who have made an apparently successful effort to pump disinformation into the minds of those predisposed to hate someone because he is a conservative Republican. On Wednesday, Nov. 7, I will contact Matt Kelty and offer to help him in any way I can, whether it be contributing some of my hard-earned money to his campaign for repayment of the loans for which he bears personal responsibility, or helping him move his things into the Mayor’s office, which he should rightly occupy. We contribute to a campaign because we believe in the innate goodness of the candidate, and not because he’s leading in the pre-election polls. The people who do the latter are fair-weather friends at best, and you won’t find many of those in the Kelty campaign.
Bravo Jim!
You are right about fair weather friends, they are all supporting Henry.
How can you trust them after this?
Phil,
I think the anaology given in the article by the attorney is EXACTLY on point. Trying to force fit one of your own lame examples to prove your bogus point, ‘aint workin’.
I don’t think someone like John Tippmann, or John Popp, or Fred Rost for that matter would support Kelty if they thought for a moment he had done something wrong or illegal. I for one agree with John Popp when he said, “The claims that Matt violated the election finance law are more political than real, and I am confident he will be cleared - “the sooner the better.””
Or better yet you have to believe Tom Henry who said Kelty was,”… innocent until proved guilty and voters should take that into account”, and “he believes his opponent is honorable”.
That’s more support from a Democrat than Kelty’s received from some Republicans. Go figure.