A former Gwinnett County commissioner accused of taking up to $1 million in bribes from a developer to arrange land deals was handed a victory Thursday when the Georgia Court of Appeals dismissed his indictment.
The victory is likely to be short-lived, though, since Gwinnett County District Attorney Danny Porter immediately pledged to seek a new indictment from another grand jury.
The court held that the special purpose grand jury did not have the legal authority to return the criminal indictment it handed down Oct. 8 against former commissioner Kevin Kenerly. The special purpose grand jury was impaneled only to investigate the acquisition of property by the Gwinnett County Board of Commissioners, the court said.
The grand jury was assembled Sept. 23, 2009, after The Atlanta Journal-Constitution published a series of stories about suspicious county land deals. The newspaper discovered commissioners may have paid well-connected developers millions of dollars more for their land than it was really worth.
Kenerly's indictment included one count of bribery and two counts of failing to disclose a financial interest in two properties he voted to rezone. Grand jurors said Kenerly "directly or indirectly" accepted or agreed to accept payments totaling $1 million as bribes for arranging for the county to buy real estate.
Kenerly's defense attorney, Pat McDonough, said Thursday his client is innocent. "While we are certainly pleased with today's victory on a point of law, make no mistake that we are also ready to win this case on the facts."
Kenerly resigned from office in November, saying the charges had become a distraction for the county.
A grand jury could hand down a new indictment as early as Wednesday, but it is more likely to be July 20, Porter said. The citizen panel meets every Wednesday.
Porter said he was surprised by Thursday's ruling. He said he will ask the court to reconsider.
"It's an incorrect interpretation of the law," Porter said, although he said no case law is exactly on point. "Everybody knew we were making new law and it could go one way or the other. I just think it happened to go the wrong way."
If the Court of Appeals won't reconsider, Porter said he will appeal the case to the state Supreme Court.
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Will Warrick, the vice-foreperson of the special purpose grand jury, said Thursday that he had no regrets.
"If it goes through due process all the way to that level of the courts and the indictment is dismissed, then justice has been done," Warrick said. "It's out of my hands. I did my job."
State law surrounding special grand juries is still a work in progress and the boundaries of their powers are still being spelled out by the courts, said Ronald Carlson, a University of Georgia law professor. Carlson believes Porter was right in seeking indictments from the special purpose grand jury. He said the panels should be allowed to hand down indictments, because they are closest to the facts.
"It just makes for a much more efficient system if they can proceed with charges rather than having to do yet a second round of educating a new grand jury," Carlson said.
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