Whether former Gwinnett County Commissioner Kevin Kenerly stands trial on corruption charges will come down to matters of timing.
Two questions need to be settled: Was it proper for Gwinnett District Attorney Danny Porter to seek a second indictment against Kenerly while a first indictment was under appeal? Did that second indictment beat the statute of limitations?
A three-judge panel of the Georgia Court of Appeals heard oral arguments on those questions Wednesday. It is likely to be several months before the panel rules.
Kenerly, who did not attend the hearing, is accused of taking a $1 million bribe from developer David Jenkins in exchange for getting the County Commission to buy land for about $7 million more than Jenkins paid for it. Kenerly also is accused of twice voting to rezone property in which he had a financial interest without disclosing that interest.
Jenkins has been given immunity in exchange for his testimony.
Kenerly’s attorney, Patrick McDonough, argued to the court that 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 as soon as prosecutors have an allegation, a suspect and the slightest evidence to support the suspicion.
“In this case, in May of 2007 you’ve got TV reports saying Mr. Kenerly and Mr. Jenkins are corrupt,” McDonough said. “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. Guess who paid for it?
“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.”
Porter shot back that it was an odd argument for a defense attorney to make.
“Everyone knew Kevin Kenerly was a crook … so we should have investigated him,” Porter said. “That’s his argument.”
Porter said his office only realized there was an alleged crime in February 2010, after granting Jenkins immunity and inspecting his private financial records.
Porter said Kenerly arranged for the county to buy about 19 acres of parkland owned by Jenkins for $18 million, then received a kickback from the developer through a partnership the two had in an unrelated property.
“On the surface, there seems to be no connection between the two,” Porter said.
“The scheme did not come to light,” Porter said, until authorities received Jenkins’ financial records, which could not be obtained through the Open Records Act.
The judges asked few questions during the hearing, but Judge Elizabeth Branch asked McDonough whether the $50,000 payments, made over 20 months, didn’t “blow up” his argument about when the statute of limitations started.
“As to bribery, the crime starts when you have an agreement,” McDonough answered.
McDonough also argued that Porter improperly sought and received indictments against Kenerly from a regularly empaneled grand jury while an indictment from a special-purpose grand jury was under appeal. The appellate court eventually ruled that the special-purpose grand jury did not have authority to issue an indictment.
“When a case is up on appeal, the trial court loses jurisdiction,” McDonough said. “The state can’t bring a second indictment when they don’t have jurisdiction. They can’t have it both ways.”
Porter tried to separate the first indictment from the second, arguing that the first indictment came after a yearlong investigation of property purchases by the commission as a whole, while the second indictment was a result of information given to a regularly scheduled grand jury about actions Kenerly took as an individual.
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