Glasgow Daily Times, Glasgow, KY

December 16, 2011

Motion denied in E. Livestock case

By AMANDA LOVIZA
Glasgow Daily Times

EDMONTON — Metcalfe Circuit Court denied a motion to dismiss in the Eastern Livestock criminal case on Thursday after one defendant’s attorney made a push last month to have 52 counts of his indictment dismissed.

Benjamin Dusing, defense attorney for Grant Gibson, filed a motion in November to dismiss all counts of Gibson’s indictment that stemmed from farmers who have also filed civil suits against Fifth Third Bank, the bank that extended and subsequently froze Eastern Livestock’s line of credit, resulting in bad checks to farmers in return for their livestock.

Dusing’s motion states that the counts within the prosecution that  stem from those 52 farmers should be thrown out because the civil suits “flatly exculpate (exonerate) the defendant and his co-defendants as to the crimes charged in the enumerated counts and, accordingly, principles of due process, judicial estoppel (impediment), and fundamental fairness require that these counts be dismissed.”

The indictment accuses Gibson and his three co-defendants of  writing the farmers bad checks while knowing that Fifth Third was going to freeze Eastern Livestock’s account, Dusing argued during a pre-trial conference on Nov. 22, that the civil suits, filed by the same farmers listed as victims of Eastern Livestock employees, state that Fifth Third froze the account “without notice to Eastern Livestock.” As plaintiffs in the civil cases, the farmers identified as victims in the criminal case “have expressly stated (in separate litigation), without qualification or ambiguity, that they were not in fact victimized by the defendant or his co-defendants,” the motion said. Therefore, Dusing said the civil suits clear the defendants of the charges against them in the criminal case.

The response filed by Assistant Attorney General F. Todd Lewis compared Dusing’s motion to a request for a summary judgment, which is not a proper legal proceeding in a criminal case. A summary judgment is only used in civil cases, and it is only applicable if there is no issue of material fact.

Once an indictment is handed down, a circuit court judge is almost completely committed to seeing the case through to trial, which Judge Phil Patton pointed out during the pre-trial conference in November. Since the defendants have been indicted, the case can only be dismissed if the commonwealth moves to dismiss it or, once a trial has begun, if the prosecution has presented its proof and the judge determines that the commonwealth cannot prove its case beyond a reasonable doubt. The prosecution still has the opportunity to come to an agreed settlement or accept a plea from the Eastern defendants, but if there is no agreement between the prosecution and the defense, the judge is now committed to taking the case to trial.

The commonwealth’s response to Dusing’s motion further stated that the civil suits, which have been filed by Glasgow attorney Thomas Davis, cannot be attributed to the attorney general due to a matter of evidence law. That means the commonwealth is not part of that civil suit, so it is not verifying the facts of the civil case. Dusing’s response anticipated the commonwealth’s point, and said that in practical terms, the commonwealth is taking inconsistent positions because it is in effect standing “in the farmers’ shoes.”

Dusing’s arguments were not sufficient to convince Patton that the motion to dismiss was any different than a request for summary judgment. The order handed down by Patton on Thursday stated that Dusing’s motion was “tantamount to seeking summary judgment in a criminal case.” The circuit court has no power to grant summary judgment in dismissing an indictment, the order went on to say, so the motion was denied.

Grant Gibson is one of four defendants, including Thomas P. Gibson, Steven McDonald and Darren Brangers, who are facing charges of organized crime and theft by deception in the case of the 2010 Eastern Livestock scandal. Eastern Livestock, for which the four defendants worked, wrote hundreds of bad checks in the fall of 2010 when Fifth Third Bank froze the company’s line of credit after discovering that the company was artificially inflating its account to hide its floundering finances. The cold checks resulted in hundreds of thousands of dollars lost for farmers, particularly many in the Metcalfe County area. A total of 172 victims are listed in the four defendants’ indictment, and 90 plaintiffs are accusing Fifth Third Bank of freezing Eastern’s account with the knowledge that the livestock company would continue to issue worthless checks.