Glasgow Daily Times, Glasgow, KY

Local News

December 14, 2011

Court wrestles with release of records

EDMONTON — Metcalfe Circuit Court was a bit crowded Tuesday morning as defense attorneys for two of the Eastern Livestock defendants, a Glasgow attorney representing civil cases related to Eastern Livestock, counsel for Fifth Third Bank, an assistant U.S. attorney and an assistant Kentucky attorney general all gathered to  voice their opinions on a motion filed to make the discovery, or evidence, in the Eastern Livestock case open record to the public.

The case charges four defendants, Thomas P. Gibson, Steven McDonald, Grant Gibson and Darren Brangers, with engaging in organized crime, 17 counts of theft by deception over $10,000, 144 counts of theft by deception over $500 but less than $10,000 and 11 counts of theft by deception under $500, for their alleged role in the 2010 scandal in which farmers received bad checks when they sold their cattle to Eastern Livestock, the company at which all the defendants worked.

Thomas Davis is a Glasgow attorney who is representing almost 100 farmers from Eastern Livestock in six separate civil cases.

Davis’ civil cases charge Fifth Third Bank with intentionally engaging in wrongful acts that led to Eastern’s line of credit being halted and farmers losing hundreds of thousands of dollars, when they believe the bank could have honored their checks despite Eastern Livestock’s solvency or lack thereof.

Davis has no legal standing in the criminal case against the four defendants in Metcalfe court, but he filed a motion in November to make the evidence in the criminal case open record, so that he and his clients could use that information in their civil cases, and so that other members of the public affected could have access to the information. It was Davis’ motion that caused a prolonged debate in court Tuesday among defense attorneys and the prosecutor of the criminal case, as well as outside parties representing Fifth Third Bank and the U.S. attorney’s office, which is prosecuting Thomas P. Gibson and Steven McDonald in federal court for mail fraud in an alleged check-kiting scheme.

Steve Romines, defense attorney for Darren Brangers, and Benjamin Dusing, defense attorney for Grant Gibson, were present for Tuesday’s pre-trial conference and both objected to an outside party filing a motion, before even delving into the content of the motion.

“I do have a problem with parties with no standing in this matter now filing motions,” Romines told the court.

The evidence that Davis has requested be made public consists of approximately 40,000 pages, a large percentage of which are bank records and have not had Social Security numbers or other sensitive information redacted. When Judge Phil Patton asked Assistant Attorney General Todd Lewis how long it would take to sift through the electronic documents and redact personal information, Lewis said, “I think a long time, Judge.” All parties agreed that it would take weeks or even months to redact the necessary information before making the documents public. The case is set to have its last pre-trial conference on Feb. 28.

Patton acknowledged that he has a “strong philosophical bent” toward the public’s right to know, and it is customary in his court that all discovery is filed in the public record itself.

“I want the public to have access to anything that could be used in the prosecution of this case or that may be exculpated to (used to exonerate) the defendants,” Patton said.

Patton’s policy of open discovery is “exceptional” in Dusing’s experience, the defense attorney said, and he told the court that he would “object in the strongest possible language” to making the police reports, FBI investigative material and other law enforcement documents open to the public.

“The public’s right is access to the proceedings,” Dusing said in court. “They have no right to criminal discovery.”

In fact, Dusing said after court, the interest of the public is not paramount when trying a criminal case. Instead, the rights of the accused to be granted a fair trial and be considered innocent until proven guilty should be upheld as the most important rights in the case.

Opening the law enforcement documents to the public is a matter of safety, Dusing said. He and Romines both argued for protecting the secrecy of law enforcement material, while they did not object to making the bank records public. Davis himself expressed a lack of interest in the law enforcement materials. Davis wants access to the bank records that may help his civil case, and J.B. Lind, counsel for Fifth Third Bank, said the bank could furnish that information to Davis, and that way the bank could take the time to properly redact any personal information.

Marisa Ford, assistant U.S. attorney, was present on behalf of the federal investigation into the alleged check kiting scheme with Eastern Livestock that is currently prosecuting Thomas Gibson and McDonald, and she voiced her objections to making the law enforcement material public, as the U.S. attorney’s investigation is ongoing.

“The federal investigation is ongoing,” Ford said. “I can tell the court we are likely to be going to the grand jury with additional defendants.”

Lewis pointed out that after the trial, all the evidence would then be made public, when it no longer could cause conflict.

The parties before the court Tuesday told Patton that they may be able to come to an agreement about what they feel should be made public and to whom, and Patton encouraged them to file an agreed disclosure. He may sign it as tendered, or he may vary from it, he told the attorneys.

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