Appeals court upholds indictment against former Gwinnett commissioner

August-September 2009: The Atlanta Journal-Constitution reports on five land deals in which Gwinnett County paid inflated prices totaling more than $38 million to politically connected developers for parkland. The AJC would eventually identify six suspicious land deals involving the county government.

October 2010: Gwinnett Commission Chairman Charles Bannister resigns from office to avoid a perjury indictment from the special grand jury. Commissioner Kevin Kenerly is indicted on a bribery charge alleging that he accepted $1 million to secure the County Commission’s approval of a land purchase for the benefit of developer David Jenkins. Kenerly denies the charge. The Georgia Court of Appeals would eventually throw out the initial indictment against Kenerly, ruling that the special grand jury was not authorized to indict

November 2010: Kenerly suspends himself from the commission for the rest of his term, which expired Jan. 1, 2011.

December 2012: A Gwinnett County Superior Court judge denies Kenerly’s request to dismiss charges against him in a second indictment.

Friday: Georgia’s Court of Appeals upholds the Gwinnett Superior Court judge’s decision denying Kenerly’s plea to dismiss the bribery charges.

Former Gwinnett County Commissioner Kevin Kenerly has moved one step closer to trial after the Georgia Court of Appeals upheld an indictment accusing him of accepting bribes.

Kenerly was first charged in October 2010 with accepting $1 million to secure the County Commission’s approval of a land purchase benefiting developer David Jenkins. Kenerly, who suspended himself from the commission in November 2010, denies the accusation. Jenkins was granted immunity in exchange for his testimony.

The appellate court had thrown out the initial indictment filed against Kenerly, ruling that a special grand jury was not authorized to indict. On Friday, though, it upheld a Gwinnett Superior Court judge’s decision denying Kenerly’s request to dismiss the charges against him in the second indictment.

Kenerly’s attorney, Patrick McDonough, argued that the second indictment should be nullified because Gwinnett District Attorney Danny Porter sought it while the first one was still under appeal.

“Kenerly’s assertion that the pending appeal of the first indictment deprived the trial court of jurisdiction to accept return of the second indictment is without merit,” the court wrote. “Not every action by a trial court is barred during the pendency of an appeal. Rather the trial court cannot execute a sentence or entertain proceedings which either require a ruling on the matters on appeal or which directly or indirectly affect such matters.”

The initial indictment followed a 10-month-long investigation conducted by a special purpose grand jury impaneled to look into suspicious parkland purchases by the county. The investigation began after The Atlanta Journal-Constitution published a series of stories questioning some of the deals.

The special grand jury ultimately concluded that Gwinnett commissioners had paid millions of dollars too much for some parcels of land in several deals that used taxpayer money to benefit commissioners’ friends and political allies.

In his argument before the appeals court, McDonough also claimed the two-year statute of limitations in the bribery case started ticking against the government in May 2007, three years before the state says it began, because that law is triggered by an allegation, a suspect and the scantest of evidence.

“In this case, in May of 2007 you’ve got TV reports saying Mr. Kenerly and Mr. Jenkins are corrupt,” McDonough said in June during oral arguments before the appeals court. “You’ve got a DVD where they followed these guys out to Vegas and they’re saying Mr. Kenerly’s $1,000-a-night room, he’s not paying for it, Mr. Jenkins is the one who made the reservations.

“This DVD was handed to the prosecution. … Is that enough to arrest someone? No. But it’s certainly enough … to trigger the statute of limitations,” he said.

Countered Porter, “Everyone knew Kevin Kenerly was a crook … so we should have investigated him. That’s his argument.”

The D.A. said his office didn’t discover the alleged crime until February 2010, after granting Jenkins immunity and inspecting his private financial records. In them, they learned Kenerly arranged for the county to buy about 19 acres of parkland owned by Jenkins for $18 million, Porter said, adding the former commissioner then received a kickback from the developer through an unrelated partnership.

In its ruling, the appeals court cited Georgia code that “the statute of limitation does not run while the crime or the person who committed the crime is ‘unknown’ — it does not say ‘and could not have been discovered through the exercise of reasonable diligence.’ ”

Neither Porter nor McDonough responded to calls requesting comment.