RENDERED: DECEMBER 19, 2024 TO BE PUBLISHED
Supreme Court of Kentucky 2024-SC-0199-KB 2024-SC-0200-KB
IN RE: PERRY THOMAS RYAN
&
IN RE: DAVID MICHAEL WILLIAMS
IN SUPREME COURT
OPINION OF THE COURT
These attorney disciplinary cases against Perry Thomas Ryan and David
Michael Williams 1 arise from their roles in representing the Commonwealth
and prosecuting Garr Keith Hardin and Jeffrey Dewayne Clark who were
convicted by a jury of the 1992 murder of Rhonda Warford. After nearly 20
years of post-conviction proceedings, the Meade Circuit Court ordered a new
trial, based in part upon new DNA testimony, and that order was affirmed by
this Court. Commonwealth v. Clark, 528 S.W.3d 342 (Ky. 2017). The
Commonwealth, acting through Commonwealth Attorneys Ryan and Williams,
later obtained additional indictments against Clark and Hardin for kidnapping,
1 Perry Thomas Ryan was admitted to the practice of law in the Commonwealth
on November 4, 1988. His KBA member number is 82555 and his bar roster address is 100 Maplewood Drive, Georgetown, Kentucky 40324. David Williams was admitted to the practice of law in this Commonwealth on May 3, 1982. His KBA member number is 77100 and his bar roster address is 2442 Lewis School Road, Leitchfield, Kentucky 42754. which originated from the sequence of events leading to Warford’s murder, and
perjury based on inconsistencies in statements the defendants made in trial
court proceedings and before the parole board. The trial court ultimately
dismissed those new indictments based on vindictive prosecution.
Subsequently, Clark and Hardin’s defense team filed a bar complaint against
Ryan and Williams and the Inquiry Commission ultimately issued four-count
charges against both Ryan and Williams in December 2019.
These cases proceeded through the disciplinary process for several years
and have included a petition for writ of mandamus to this Court in 2022. The
Trial Commissioner, in a confusing opinion, ultimately found Ryan and
Williams guilty on all four counts. The Board of Governors disagreed and
concluded that no discipline was warranted for either prosecutor. Bar Counsel
appealed to this Court.
In reviewing this case, we recognize the important role of prosecutors in
representing the Commonwealth, and the duties they have to both the public
and our justice system. This Court takes seriously our role to guard against
abuse of the criminal process and ensuring that attorneys abide by all rules
governing the practice of law in this Commonwealth.
FACTS AND PROCEDURAL HISTORY
In 1992, Rhonda Warford was murdered in Meade County, Kentucky.
Jeffrey DeWayne Clark and Garr Keith Hardin were convicted for Warford’s
murder following a joint seven-day jury trial. The defendants were sentenced
to life in prison and their convictions were affirmed on direct appeal, Hardin v.
2 Commonwealth, 95–SC–000461–MR (Ky. Aug. 29, 1996); Clark v.
Commonwealth, 95–SC–000453–MR (Ky. Oct. 2, 1997) and upheld in post-
conviction proceedings. E.g., Clark v. O'Dea, 257 F.3d 498 (6th Cir.
2001) (federal habeas corpus); Hardin v. Commonwealth, 2001-CA-1782-
MR, 2003 WL 21106138 (Ky. App. May 16, 2003) (Rule of Criminal Procedure
11.42 ineffective assistance of counsel).
In 2009, fourteen years after Clark and Hardin’s convictions, the
Innocence Project agreed to represent Clark and Hardin to secure DNA testing
of hairs found on the victim, as well as the victim’s fingernail scrapings. The
trial court denied the motion, finding that DNA testing could only serve to
incriminate a third party, but, in light of the independent evidence against
Clark and Hardin, it would not exonerate either of them. Clark and Hardin
then appealed and on April 25, 2013, this Court overturned the trial court and
ordered the release of the physical evidence for DNA testing. Hardin v.
Commonwealth, 396 S.W.3d 909 (Ky. 2013). The Court’s opinion reversing the
trial court stated,
First of all, we are mystified, if not amazed, that the Commonwealth has such little interest in the possibility that DNA testing might lead to the prosecution and conviction of a guilty person heretofore uncharged and now at large upon the Commonwealth.
Id. at 915.
As a result, the evidence was released for testing. The Meade Circuit
Court conducted a two-day evidentiary hearing in July 2015 to discuss the
results of the additional testing. The trial court concluded, in part, that the
3 post-conviction DNA evidence revealed the hair that was previously represented
as “matching” Hardin’s hair during the 1995 trial did not come from Hardin.
Because the trial court opined that this new evidence was relevant, material,
and exculpatory, the trial court granted the defendants’ motion for a new trial
in July 2016. 2 The Commonwealth appealed that ruling to the Court of
Appeals and this Court granted transfer.
While the appeal to this Court was pending, proceedings continued in the
trial court. At some point after the July 2015 evidentiary hearing, prosecutors
Perry Ryan and David Williams, representing the Commonwealth, compared
several statements that Clark and Hardin made under oath during the
evidentiary hearing and discovered they had been untruthful. The attorneys
believed that Clark and Hardin gave sworn statements that were irreconcilable
with previous statements made to the parole board. They also learned that
Hardin confessed to the crimes during parole board hearings in 2008 and
2014, and that the defendants provided details of how they deceived Warford
into getting in Clark’s car to the parole board.
2 The defendants also conducted new DNA testing on a blood-stained cloth and
broken chalice seized from Hardin’s bedroom. At trial, the Commonwealth asserted its theory that Clark and Hardin were involved in satanic worshipping, which motivated the murder. To prove that Hardin killed small animals and wanted to advance to human sacrifices, the Commonwealth introduced the chalice and cloth and proposed the blood originated from performing a ritual animal sacrifice. Hardin testified at trial that the blood on the broken chalice and cloth was his. The later DNA testing revealed the blood was in fact Hardin’s and he was telling the truth in his trial testimony. In addition, the defendants introduced evidence that a police detective, who conducted most of the interviews with Clark and Hardin, was later criminally investigated for alleged misconduct in another case, which undermined his credibility and testimony in the murder trial. 4 In February 2014, while before the parole board, Hardin admitted that he
stabbed Warford and implicated Clark in the crime. Attorney Williams learned
of Hardin’s confession because the victim’s mother, Mary Warford, attended the
parole hearing and afterward advised the Commonwealth’s Attorney that
Hardin had fully confessed to the crime. Hardin admitted that they did not tell
Warford where they were going when they picked her up in Clark’s car. A
parole board member stated “So it wasn’t – you didn’t force her to do it. Was it
– ‘We’re going to pick you up and ride around?’” Hardin affirmed the
statement. In one of their pleadings, Ryan and Williams asserted that during
the 1995 trial, the Commonwealth had no evidence that either defendant used
deception to lure Warford into Clark’s car when they drove her to Meade
County to kill her. It was not until 2014 when they learned that Clark and
Hardin deceived Warford by not revealing their true criminal purpose in moving
her, and Ryan and Williams asserted that such conduct qualifies under
Kentucky’s statutory definition of “restrain” and “kidnapping.” See Kentucky
Revised Statute (KRS) 509.010 and 509.040. Ryan and Williams further
explained that until the court granted a new trial, they did not believe it was
necessary to add the kidnapping charge to the original charges because Clark
and Hardin were already serving life sentences.
After the 2015 evidentiary hearing, Ryan and Williams obtained copies of
the 2006 parole board hearings from Warford’s mother. During Clark’s
hearing, he admitted that he helped Hardin move Warford’s body after Hardin
killed her, and that he knew Hardin planned to kill Warford because Hardin
5 believed she was pregnant with his child. During Hardin’s hearing, he
confessed to killing Warford and explained that the crime was partially
motivated by satanism.
In sum, Ryan and Williams explained the chronology of the defendant’s
alleged perjury: (a) in 1992 during police interviews, both defendants denied
the murder; (b) during the 1995 trial, both defendants denied the murder; (c)
during their 2006 parole board hearings, Clark admitted foreknowledge of the
crime (Hardin stated he was going to kill Warford because she was allegedly
pregnant with his child) and admitted to moving her body; (d) during his 2014
parole board hearing, Hardin confessed to the murder, and (e) during the 2015
evidentiary hearing, both lied about various aspects of the crime. Therefore,
the attorneys opined that there was probable cause to believe both Clark and
Hardin committed perjury during the 2015 evidentiary hearing.
In September 2016, Ryan and Williams presented new indictments for
perjury and kidnapping to the grand jury. Ryan and Williams believed that a
newly impaneled jury should be given the opportunity to review the full scope
of Clark and Hardin’s crimes. Additionally, Ryan and Williams believed Clark
and Hardin posed a substantial danger to public safety and that the new
charges might delay their parole.
As to the kidnapping charge, Williams played an audio recording from
Clark’s February 2014 parole board hearing in which he stated he and Hardin
called Warford to go out driving and picked her up. Ryan explained Kentucky
law on kidnapping, and when asked by Williams whether what Clark and
6 Hardin did fell within that definition, Ryan stated “yes.” There were no
witnesses who testified before the grand jury. The grand jury indicted Clark on
one count of kidnapping and one count of perjury, and indicted Hardin with
one count of kidnapping and one count of perjury. In response to the new
indictments, defendants filed motions to dismiss for vindictive prosecution,
prosecutorial misconduct, and failure to call a sworn witness, in addition to a
motion to disqualify Ryan as prosecutor, alleging that he acted as a witness
before the grand jury.
On March 13, 2017, Williams re-presented the recorded evidence to a
grand jury, partly to address some of the issues raised by the defendants in
their motions—namely the assertion that Ryan should not have served as a
witness. This time, Ryan was not present. Williams explained the grand jury
process and that nothing he said to the grand jury constitutes evidence, but
rather background information intended to assist the grand jury in determining
whether a reasonable basis existed to return an indictment. Williams provided
a brief factual background of the case by asking the clerk to read a prior
opinion of the United States Court of Appeals for the Sixth Circuit. Similar to
the 2016 grand jury proceedings, Williams then played the video recordings of
portions of the testimony given by Clark and Hardin during the July 2015
evidentiary hearing and statements made to the parole board. The second
grand jury returned superseding indictments against both defendants,
7 charging Clark with three counts of perjury 3 and one count of kidnapping, and
charging Hardin with one count of perjury and one count of kidnapping.
In June 2017, this Court heard oral arguments on the Commonwealth’s
appeal of the order granting a new trial. The Court later issued an Opinion
affirming the trial court, holding that the Commonwealth had not established
its burden of proving that the trial court abused its discretion in granting a
new trial. 4 Clark, 528 S.W.3d at 348. On October 3, 2017, Williams requested
to be removed from the case due to the death of his wife, and the Attorney
General substituted two special prosecutors to take over the case. At this
point, Ryan and Williams had no further involvement with the case.
The trial court dismissed the perjury and kidnapping indictments on
January 19, 2018, stating that Williams and Ryan were vindictive in presenting
the indictments to the grand jury. The trial court reasoned that the addition of
kidnapping charges was “presumptively retaliatory” and a mere effort to
increase the penalty to which defendants were exposed following the
defendants’ successful motion for a new trial. Further, the trial court opined
that the new charges were based on the defendants’ unsworn and unreliable
3 The superseding indictment contained two additional perjury charges that are
inconsequential to this appeal. Bar Counsel focuses on the original perjury charge against Clark, which also appeared in the superseding indictment. The two other perjury charges were based on Clark lying to the parole board about not having committed any offenses while incarcerated, when in fact he was disciplined for selling marijuana, and additional statements made before the parole board about giving the victim’s family closure. 4 Now Chief Justice VanMeter dissented, opining that the trial court
abused its discretion in vacating the convictions and granting a new trial because the convictions were supported by sufficient probative evidence.
8 statements to the parole board, which they likely made to secure freedom, not
to admit guilt. The trial court also noted that the kidnapping charge arose
from the same nucleus of facts as the original indictment in 1992.
Additionally, the trial court referenced Ryan’s closing argument made
during the hearing on the motion for a new trial, during which Ryan stated the
defendants should feel fortunate that they were parole eligible because a new
trial could subject them to a kidnapping charge as their actions constituted
restraint under Kentucky law. The trial court also found that Clark’s perjury
charges were false represented by Williams to the grand jury, which further
supported a presumption of vindictiveness.
Meanwhile, on January 9, 2018, the special prosecutors appointed to the
case moved to dismiss the murder case without prejudice. The motion
recognized that there was little physical evidence to link either defendant to the
victim’s body or the crime scene, but that, taking the evidence as a whole, it
was reasonable for the jury to convict both men in 1995. Additionally, after
both men were convicted, they gave incriminating statements to the parole
board during their hearings in 2006, and again in 2014. But the
Commonwealth explained that subsequent discoveries about the reliability of
witness testimony 5, along with the development of more reliable scientific
5 During the murder trial, a police detective and a jailhouse informant testified
and stated that Hardin and Clark, respectively, made various admissions to them. At the time of the special prosecutors’ motion to dismiss the murder case, the detective had been investigated for falsifying at least one other confession, and the informant subsequently sent a letter to a fellow inmate that could be reasonably interpreted as encouraging the fellow inmate to falsely testify that Hardin also confessed to him. 9 testing, led the Commonwealth to conclude that there was no longer sufficient
evidence by which a reasonable jury could conclude the defendants are guilty
beyond a reasonable doubt. The trial court dismissed the murder charges
without prejudice.
The defendants’ counsel filed bar complaints against Ryan and Williams
in early 2019 based on their actions in procuring the additional kidnapping
and perjury indictments and the trial court’s vindictive prosecution finding.
The Inquiry Commission issued a four-count charge against both Ryan and
Williams, alleging violation of four rules.
Count I alleges violation of Supreme Court Rule (SCR) 3.130(3.1), which
states “[a] lawyer shall not knowingly bring or defend a proceeding, or assert or
controvert an issue therein, unless there is a basis in law and fact for doing so
that is not frivolous, which includes a good faith argument for an extension,
modification or reversal of existing law.” The Inquiry Commission relies on the
trial court’s vindictive prosecution order holding that Ryan and Williams
committed vindictive prosecution by bringing the kidnapping and perjury
charges against the defendants. The Inquiry Commission specifically quoted
the trial court’s order: “The record shows that the Commonwealth’s initiation of
new charges was not based on any additional factual investigation or legal
analysis, but because Defendants exercised their constitutional and
statutorily-protected right to challenge their original convictions and won.”
Count II alleges violation of SCR 3.130(3.4)(f), which states “[a] lawyer
shall not . . . present, participate in presenting, or threaten to present criminal
10 or disciplinary charges solely to obtain an advantage in any civil or criminal
matter . . . .” The Inquiry Commission asserts that Ryan and Williams violated
this rule by threatening to indict and later indicting defendants on new charges
after the trial court vacated their convictions and granted a new trial.
Count III alleges violation of SCR 3.130(3.8)(a), which states in pertinent
part “[t]he prosecutor in a criminal case shall . . . refrain from prosecuting a
charge that the prosecutor knows is not supported by probable cause . . . .”
The Inquiry Commission asserts that Ryan and Williams violated this rule by
prosecuting multiple charges of perjury and kidnapping that the trial court
ultimately concluded were “not the product of good faith” and vindictive.
Count IV alleges violation of SCR 3.130(8.4)(c), which states “[i]t is
professional misconduct for a lawyer to . . . engage in conduct involving
dishonesty, fraud, deceit, or misrepresentation . . . .” The Inquiry Commission
alleges Ryan and Williams violated this rule by falsely representing evidence to
the Meade County grand jury to obtain a perjury charge against Clark, as
found by the Meade Circuit Court.
After Ryan and Williams filed Answers, the matter was assigned to a trial
commissioner. One of the preliminary issues presented to the Trial
Commissioner was the preclusive effect of the circuit court’s January 2018
vindictive prosecution order. The parties disputed whether Ryan and Williams
were collaterally estopped from contesting the trial court order or presenting
evidence to rebut the findings set forth therein. The Trial Commissioner ruled
that Ryan and Williams were precluded from re-litigating the issues in the
11 January 2018 order and, as a result, in August 2021, the Trial Commissioner
conducted a hearing which excluded Ryan’s and Williams’ proposed witnesses.
Ryan and Williams took testimony from Judge Bruce T. Butler, who had issued
the vindictive prosecution order, and Christopher Cohron, Commonwealth’s
Attorney for the 8th Judicial Circuit, who was to testify about the Kentucky
grand jury process, by avowal.
The Trial Commissioner determined that Ryan and Williams violated the
rules, as charged, and recommended a sanction of a 180-day suspension, with
30 days to serve and the balance probated for 2 years. Ryan and Williams
appealed and the Board of Governors remanded the matter to the trial
commissioner for a new evidentiary hearing, concluding that the application of
collateral estoppel was error. The Board reasoned that the Trial Commissioner,
as initial fact finder, should fully hear and consider all testimony and that each
party should be afforded the opportunity to effectively cross-examine witnesses
and fully present their case.
Following entry of the Board’s Order, Bar Counsel filed a Petition for Writ
of Mandamus. Bar Counsel argued that the Board’s remand order was too
broad in that it ordered a completely new hearing. In October 2022, this Court
issued an Opinion concluding that the Board’s Order of remand was not too
broad, and anticipated that on remand, the Trial Commissioner would be
limited to hearing live testimony only from the witnesses who testified by
avowal. The Court also held that Bar Counsel failed to satisfy the writ
standard, reasoning that the time and expense of additional proceedings does
12 not constitute great injustice and irreparable injury, and that Bar Counsel has
an adequate remedy by appeal because the Court has final authority over
attorney discipline and through de novo review. Therefore, the Court denied
relief.
In May 2023, the Trial Commissioner conducted a supplementary
evidentiary hearing. The KBA only introduced the January 2018 vindictive
prosecution order in support of its case. Ryan and Williams both testified. The
Trial Commissioner also heard testimony from Judge Butler, who stated that
he did not believe Ryan and Williams did anything unethical, and that he
believed the additional kidnapping and perjury charges were vindictive but did
not believe the indictments were brought in bad faith or without probable
cause. The Trial Commissioner again found that Ryan’s and Williams’
misconduct violated the four rules as charged and recommended the same
discipline as in his first report, 180-day suspension, 30 days to serve with the
balance probated for 2 years.
Ryan and Williams appealed to the Board of Governors. After oral
argument and careful review, the Board concluded that the findings of the Trial
Commissioner were not supported by substantial evidence and were clearly
erroneous as a matter of law. The Board voted fourteen to three to reject the
second report of the Trial Commissioner and consider the matter on a de novo
basis. For each Count, the Board voted as follows:
Count I: Guilty (0); Not Guilty (17) Count II: Guilty (9); Not Guilty (8) Count III: Guilty (0); Not Guilty (17) Count IV: Guilty (0); Not Guilty (17) 13 Because the requisite number of guilty votes is eleven, the Board was unable to
make a recommendation on discipline as to Count II. Bar Counsel filed a
notice of review with this Court pursuant to SCR 3.370(8).
ANALYSIS
In attorney disciplinary proceedings, the Kentucky Bar Association (KBA)
bears the burden of proving the facts by a preponderance of the evidence. SCR
3.330(4). Findings of fact by a Trial Commissioner and the Board of Governors
are merely advisory. Ky. Bar Ass’n v. Barry, 626 S.W.2d 632, 633 (Ky. 1981).
“Final decisions of guilt and punishment can only be made by the Supreme
Court, and it is done on the basis of a de novo consideration of pleadings and
trial review.” Ky. Bar Ass'n v. Thornton, 279 S.W.3d 516, 518 (Ky. 2009)
(citation omitted). The Court makes an independent review of the record and
independent findings of fact and may “enter such orders or opinion as it deems
appropriate on the entire record.” Ky. Bar Ass'n v. Maze, 397 S.W.3d 891, 897
(Ky. 2013) (citation omitted). As a result, this Court conducted a thorough
review of the history of this case, the grand jury proceedings, and the
pleadings. Following is an analysis of each Count in turn.
Count I
Count I alleges that Ryan and Williams violated SCR 3.130(3.1), which
prohibits a lawyer from knowingly bringing or defending a proceeding unless
there is a non-frivolous basis in law or fact for doing so. The Trial
Commissioner determined that Ryan and Williams violated this rule by
appearing before the grand jury with no sworn witnesses and, in effect,
14 testifying themselves. The Board unanimously concluded that Ryan and
Williams were not guilty of violating this rule and opined that they conducted a
thorough investigation before bringing the kidnapping and perjury charges to
the grand jury. It further found that the new charges were based upon factual
evidence discovered by Ryan and Williams after the 2015 evidentiary hearing.
Both Ryan and Williams testified that they conducted factual and legal analysis
to establish probable cause. Additionally, neither Ryan nor Williams were
sworn in as witnesses, and gave only brief factual background on the case and
explained the law on kidnapping and perjury to both grand juries. They also
played the defendants’ sworn statements and contrasted them with the parole
board hearings where they made inconsistent statements.
Bar Counsel highlights statements made by Williams to the grand jury,
including his response to a grand juror question in which he stated, “it looks
like they killed her, drug her up in the woods and then they never went back.”
Bar Counsel also takes issue with Williams stating “I couldn’t give you a lot of
detail except I think they found a pool of blood in one area and they could see
where the body had been dragged to the fence which is what Clark had said
and held to.” But these explanations have little to no bearing on the charges
before the grand jury, which were perjury and kidnapping. Bar Counsel argues
that Ryan and Williams’ statements to the grand juries went far beyond
providing a brief factual background, as described by the Board, and instead
asserts that Ryan and Williams told the grand jury what to believe. It is also
important to note that a prosecutor’s role, as an advocate for and
15 representative of the Commonwealth, is to prosecute criminal offenses. By
playing the actual recorded statements of the defendants, Ryan and Williams
permitted the grand jury to compare the hearing testimony with the
defendants’ earlier statements and develop their own conclusions based on the
law and evidence presented.
While both Ryan and Williams commented on the evidence presented,
and explained the law on kidnapping and perjury, the grand jury heard the
direct evidence itself. Bar Counsel takes issue with the fact that no witnesses
were called during the 2016 grand jury proceedings; however, no witnesses
were necessary. This is particularly true considering that the parole board
hearings were verified and authenticated by the sworn affidavits of the parole
board members. The grand jury heard portions of the 2016 evidentiary hearing
during which Clark gave sworn testimony and stated he had never confessed or
said he committed the murder. Williams then stated “[t]hey asked him if he
had ever admitted he had any involvement in this crime, and he said no.”
Williams proceeded to play a recording from Clark’s 2006 parole board
appearance during which he admitted to helping Hardin move the victim’s body
after she was already dead.
Williams equated Clark’s statement that he helped Hardin move the body
to being involved with the murder, which is a reasonable interpretation. While
moving a body is arguably not part of the actual death, it could rationally be
viewed as part and parcel in the overall crime. While Williams interpreted the
evidence as part of a recommendation, it was ultimately the jury’s role to
16 determine whether the evidence presented constituted probable cause for the
perjury charge. Significantly, two separate grand juries heard the evidence and
issued indictments. “An indictment returned by a legally constituted and
unbiased grand jury . . . if valid on its face, is enough to call for trial of the
charge on the merits.” Costello v. U.S., 350 U.S. 359, 363 (1956).
Both Ryan and Williams testified before the Trial Commissioner that they
conducted a thorough investigation before bringing the kidnapping and perjury
charges. They researched relevant law, and consulted other prosecutors and a
former trial court judge before deciding to present the charges to a grand jury.
This is evidenced by their possession of the recordings from the 2015
evidentiary hearing, as well as the audio recordings of the parole board
hearings. When new trial was granted, Ryan and Williams believed it became
necessary for any new jury to hear the entire scope of the evidence as it was
then known. Additionally, Ryan and Williams brought the additional charges
for kidnapping and perjury before this Court ruled on the Commonwealth’s
appeal from the order vacating the convictions and ordering a new trial.
Therefore, it was not absolute that a new trial would indeed occur.
As to the kidnapping charge, although the crime occurred in 1992, the
prosecutors state that they learned, for the first time in 2014, that the
defendants deceived the victim without revealing their true criminal purpose in
transporting her, and such conduct qualifies as kidnapping under Kentucky
law. Bar Counsel admits that it is possible that the defendants’ actions are
encompassed by the definition of restraint under Kentucky law but takes issue
17 with the timing of the additional charges. As Ryan and Williams point out,
KRS 505.040 requires a prosecutor to wait until a judgment has been vacated
before instituting any new charges after a defendant has been convicted. The
murder convictions were not vacated until July 14, 2016. Additionally, Ryan
and Williams stated that they spent time researching caselaw and statutes to
determine whether additional indictments were appropriate.
SCR 3.130(3.1) prohibits a lawyer from instituting a proceeding unless
they have a nonfrivolous basis in law and fact for doing so. Bar Counsel has
failed to point to any evidence in the record that Ryan and Williams sought the
perjury and kidnapping indictments without a legal and factual basis.
Therefore, this Court agrees with the Board and finds that the KBA has failed
to establish the allegations in Count I by a preponderance of the evidence.
Count II
Count II alleges that Ryan and Williams violated SCR 3.130(3.4)(f), which
provides “[a] lawyer shall not . . . present, participate in presenting, or threaten
to present criminal or disciplinary charges solely to obtain an advantage in any
civil or criminal matter . . .” by threatening to indict and later indicting Clark
and Hardin on new charges after the trial court vacated the murder
convictions. While the Trial Commissioner determined that Ryan and Williams
violated this rule, the Board was split (nine guilty votes and eight not guilty
votes).
In a footnote in their response to the defendants’ motion for a new trial
filed on June 18, 2015, Ryan and Williams stated,
18 Clark and Hardin were not tried for murder as a capital offense, so they cannot show prejudice. Clark and Hardin’s motion does not mention that, under Kentucky law, transporting a victim, without disclosing to the victim and underlying criminal purpose, constitutes kidnapping under KRS 509.040 and KRS 509.010. In a capital case kidnapping is an aggravator. KRS 532.025. In the present case, the evidence strongly suggested that Clark and Hardin transported the victim without disclosing their true purpose to her.
Bar Counsel interprets this statement as a “thinly veiled threat” that if the
defendants exercised their Constitutional right to request a new trial, they
would charge them with kidnapping and make it a capital case. Bar Counsel
further argues that the new indictments sought to obtain an advantage in the
murder case Ryan and Williams believed they were being erroneously forced to
retry because the new indictments would have given the Commonwealth more
leverage against the defendants.
Recently, in addressing alleged violations of SCR 3.130(3.4)(f) for
threatening or presenting criminal or disciplinary charges against a judge and
opposing counsel, this Court explained
[t]he mere filing of such complaints, of course, is not afoul of the Rule, but rather the violation occurs in the filing or threatening to file such complaints “solely to obtain an advantage in any civil or criminal matter.” SCR 3.130(3.4)(f). Whether the disciplinary complaints have merit is tangential to this issue. See Blum, 404 S.W.3d at 850 (stating “[i]n our view, it is ‘only marginally consequential whether the target lawyer has in fact behaved unethically.’ Rather, the ‘focal point here is the purpose of the threat and not the conduct of the lawyer being threatened[ ]’ ”) (quoting Douglas R. Richmond, Saber–Rattling and the Sound of Professional Responsibility, 34 Am. J. Trial Advoc. 27, 61 (Summer 2010)).
In re Dusing, 2023-SC-0483-KB, 2024 WL 4310459, at *6 (Ky. Sept. 26, 2024).
Applying the above rationale to this case, the mere filing of the new
indictments for perjury and kidnapping was not a violation of the rule. Ryan 19 and Williams only violated the rule if they initiated additional charges “solely to
obtain an advantage in any civil or criminal matter.” SCR 3.130(3.4)(f).
The KBA asserts that bringing the additional indictments gave Ryan and
Williams more leverage against the defendants, whether in plea negotiations or
by increasing the penalty, or to bolster their weakened murder case in front of
a jury. But there is no evidence that the sole motivation in seeking the
additional indictments was to gain leverage. Prosecutors are expected to use
their discretion in bringing charges and are charged with determining how to
apply the law to someone. Bringing additional charges would have provided a
full picture view of the events that transpired between the defendants and the
victim, which ultimately led to murder.
Both Ryan and Williams testified that they did not bring the perjury and
kidnapping charges against the defendants to obtain an advantage in a civil or
criminal matter. The attorneys assert that the Meade Circuit Court record does
not support Clark and Hardin’s claims that the Commonwealth sought the
kidnapping indictments so it could seek the death penalty during retrial. Ryan
testified that there were never any formal steps taken to pursue the death
penalty. Ryan also explained that they brought the additional indictments
when they did because they had just discovered the evidence necessary to
establish probable cause for the commission of those crimes. Judge Butler
testified that no one representing the Commonwealth ever discussed the death
penalty with him. As such, we do not find by a preponderance of the evidence
that Ryan and Williams had an improper purpose in bringing the additional
20 indictments, and therefore the KBA did not establish a violation of SCR
3.130(3.4)(f) by a preponderance of the evidence.
Count III
Count III alleges violation of SCR 3.130(3.8)(a), which states in pertinent
part “[t]he prosecutor in a criminal case shall . . . refrain from prosecuting a
charge that the prosecutor knows is not supported by probable cause . . . .”
The Inquiry Commission asserts that Ryan and Williams violated this rule by
prosecuting multiple charges of perjury and kidnapping that the trial court
ultimately concluded were “not the product of good faith” and vindictive. While
the Trial Commissioner opined that Ryan and Williams were guilty of violating
this rule, the Board unanimously found no violation.
The Board emphasized that evidence was presented to two separate
grand juries, both of which found probable cause to return indictments against
the defendants. “It is generally accepted that an indictment represents a
finding that there is probable cause to believe that a crime has been
committed.” Democratic Party of Ky. v. Graham, 976 S.W.2d 423, 427 (Ky.
1998), as modified (Oct. 15, 1998) (citation omitted). In addition, the Trial
Commissioner’s report acknowledges that the trial court “did not believe the
indictments were brought in bad faith or without probable cause.”
A grand jury’s role is to determine whether a prosecutor’s evidence
provides probable cause to issue an indictment. Wood v. Georgia, 370 U.S 375,
390 (1962). Two separate grand juries listened to recorded statements and
both of those grand juries returned indictments. Additionally, Ryan and
21 Williams have consistently maintained their belief that they had probable cause
to pursue the kidnapping and perjury charges. Ryan testified that he firmly
believed there was probable cause to seek the indictments, and later reiterated
that there was “no doubt” in his mind that he had sufficient probable cause.
Likewise, Williams testified that he has never pursued criminal charges where
he did not believe there was probable cause to do so.
Moreover, we perceive no subterfuge. The trial court dismissed the
kidnapping and perjury indictments based on vindictive prosecution, not based
on a lack of probable cause. The judge further affirmed that he did not believe
that Ryan or Williams acted unethically in this case. “The grand jurors shall
find an indictment where they have received what they believe to be sufficient
evidence to support it . . . .” Rule of Criminal Procedure 5.10. We agree with
the Board that Ryan and Williams were not guilty of violating SCR
3.130(3.8)(a), as probable cause is a fairly low standard to satisfy, requiring
only a reasonable basis to believe a crime has been committed, and Ryan and
Williams presented sufficient evidence to meet that standard. Therefore, there
is insufficient evidence to prove a violation of SCR 3.130(3.8)(a).
Count IV
Count IV alleges violation of SCR 3.130(8.4)(c), which states “[i]t is
professional misconduct for a lawyer to . . . engage in conduct involving
dishonesty, fraud, deceit, or misrepresentation . . . .” The Inquiry Commission
alleges Ryan and Williams violated this rule by falsely representing evidence to
the grand jury to obtain a perjury charge against Clark, as found by the trial
22 court. The Trial Commissioner found Ryan and Williams guilty of violating this
rule, but his rationale is incomprehensible. The report often lacked support for
its conclusions and was poorly worded. 6 The Board determined that the Trial
Commissioner failed to cite any conduct that involved dishonesty, fraud, deceit
or deception and unanimously voted that Ryan and Williams did not violate
this rule.
Bar Counsel asserts that Williams mischaracterized Clark’s testimony in
order to secure a perjury conviction. During the grand jury proceedings,
Williams played a clip from the 2015 evidentiary hearing during which Clark’s
counsel asked him about his parole board appearance, and Clark testified that
he had never confessed or “said that [he] committed the murder.” Williams
summarized this exchange for the grand jury and said “[t]hey asked him if he
had ever admitted he had any involvement in this crime, and he said no.”
Williams juxtaposed Clark’s testimony with an audio recording from Clark’s
2006 appearance before the parole board, during which he took responsibility
for his actions and admitted to helping Hardin move the victim’s body after
Hardin killed her. Williams then provided his interpretation that when Clark
stated under oath in 2015 that he never admitted to any involvement in the
6 For example, the report states “However, the Meade Circuit Court’s ‘Findings
of Fact,’ referenced above, as supported by the documents and the avowal exhibits.” The report also states, “[a]s for the CD being a complete recording of the 2006 Parole Board hearing being complete, the copy provided to the Defendants in response to discovery and to the Complainant and the Trial Commissioner it does not appear to be a complete recording.” 23 case, that was perjury because he had previously admitted his involvement to
the parole board.
As explained in discussing Count I above, Williams equated Clark’s
statement that he helped Hardin move the body to being involved with the
murder, which is a reasonable and plausible interpretation. Bar Counsel has
failed to point to any other evidence that establishes Ryan and Williams acted
dishonest or deceitful in the grand jury proceedings. Ryan and Williams played
the tapes for the jury, gave factual background about the case, and provided
their own interpretations in applying Kentucky law to the charges at issue.
The grand jury was able to listen to the recordings and make its own
determination as to whether there was probable cause supporting the charges.
We further note that on the same day the trial court signed the order
dismissing the kidnapping and perjury indictments, the trial court also signed
an order denying Clark and Hardin’s motion to dismiss the indictments for
prosecutorial misconduct, emphasizing that “[c]ourts are extremely reluctant to
scrutinize grand jury proceedings as there is a strong presumption of regularity
that attaches to such proceedings.” Commonwealth v. Baker, 11 S.W.3d 585,
588 (Ky. App. 2000). The trial court further concluded that Clark and Hardin
did not demonstrate a flagrant abuse of the grand jury process that resulted in
both actual prejudice and deprived the grand jury of autonomous and
unbiased judgment due to prosecutorial misconduct. As such, we conclude
that Ryan and Williams are not guilty of violating this rule.
24 In addition to the findings above, and our thorough review of the lengthy
procedural history in this case, this Court does not find sufficient evidence to
recommend discipline for Ryan and Williams. We note generally that both
Ryan and Williams have maintained lengthy, unblemished careers as
prosecutors with no history of prior discipline and a clear dedication to public
service. Ryan represented the Commonwealth in litigating this case for
approximately twenty-two years, and Williams assisted with the case since
2015. While appreciating the serious concern of overzealous or vindictive
handling of criminal matters by the state, and the KBA’s and this Court’s role
in ensuring fair and unbiased handling of criminal cases, the KBA has not met
its burden.
CONCLUSION
Based on the foregoing, we conclude that Ryan and Williams did not
commit any misconduct and that no discipline is warranted.
All sitting. All concur.