TO BE PUBLISHED
Supreme Court of Kentucky 2023-SC-0104-KB
KENTUCKY BAR ASSOCIATION MOVANT
IN SUPREME COURT V.
RICHARD BOLING RESPONDENT
OPINION AND ORDER
The Kentucky Bar Association (KBA) initiated these disciplinary
proceedings against Richard Boling in February 2020 which are now before
this Court for final resolution. The Trial Commissioner rendered his findings
on December 7, 2022 and the parties agreed to submit these proceedings to
this Court pursuant to Kentucky Supreme Court Rule (SCR) 3.370. As such,
Boling does not oppose the Trial Commissioner’s recommended five-year
suspension. Finding good cause, we agree with the recommended discipline.
Preliminarily, we note that Richard Boling, KBA Member No. 86116, was
admitted to practice law in this Commonwealth on October 16, 1995. His bar
roster address is 512 South Abbey Way, Hopkinsville, Kentucky 42240.
BACKGROUND
This case involves two KBA disciplinary matters. First, KBA File 20-DIS-
0010, which involves a letter Boling wrote in support of a pardon for Dayton Jones. This Court rejected Boling’s motion for a negotiated sanction in a
confidential opinion issued on October 29, 2020. Second, KBA File 20-DIS-
0056, which involves Boling’s prosecutorial misconduct as addressed by this
Court in Brafman v. Commonwealth, 612 S.W.3d 850 (Ky. 2020). These
matters were both presented to the Court by way of Boling’s motion for a
negotiated sanction, which this Court rejected in a confidential opinion
rendered April 29, 2021. We address each disciplinary matter in turn.
KBA File 20-DIS-0010 - The Jones Matter
Boling served as an Assistant Commonwealth’s Attorney in Christian
County from 1997 until 2000 when he became the Christian County
Commonwealth’s Attorney. In 2006, Boling was defeated for a second term by
Lynn Pryor, and he subsequently returned to private practice. In November
2018, Boling won the general election for Christian County Commonwealth’s
Attorney, defeating Pryor, and took office in January 2019.
This disciplinary matter arises from a letter Boling sent to then-Governor
Matt Bevin on December 9, 2019, concerning a pardon request for Dayton
Jones. In October 2014, Jones and others were drinking alcohol, and when
one of the boys passed out, Jones and others sexually assaulted him. A video
of the assault was posted on social media. Jones and others involved were
indicted. The case was initially prosecuted by Christian County
Commonwealth’s Attorney Lynn Pryor. However, because Pryor’s daughter was
present at some point during the 2014 incident, Pryor disqualified herself, and
2 special prosecutors were appointed. At no time was Boling a prosecutor in
Jones’s case.
Jones entered a guilty plea to sodomy in the first degree, wanton
endangerment in the first degree, and distribution of matter portraying a
sexual performance by a minor in the first degree. On December 1, 2016, he
was sentenced to fifteen years in prison by the Christian Circuit Court.
Between 2014 and 2018, Jones’s grandparents, Mr. and Mrs. Jones,
occasionally contacted Boling with questions regarding events in the criminal
case. They also expressed concerns about how the prosecution was
proceeding. Boling generally viewed their statements to him as simply venting
regarding their grandson’s case. Notably, in March 2018 the Joneses each
contributed $1,500 to Boling’s election campaign.
On December 6, 2019, Mrs. Jones contacted Boling. The following day,
Boling spoke with Mrs. Jones on the phone and she asked Boling to write a
letter to Governor Bevin concerning a pardon request for her grandson. She
indicated that they were seeking a pardon but did not specifically indicate
whether a Pardon Application had already been filed. Unbeknownst to Boling,
Jones had filed a pro se application for pardon or commutation on November
27, 2019, and Governor Bevin’s General Counsel had already recommended
Jones receive a pardon or have his sentence commuted.
On December 7, 2019, Boling, as requested, began drafting a letter to
Governor Bevin in support of a pardon. Governor Bevin’s term was set to end
at midnight on Monday, December 9, 2019. Boling testified that he finished
3 drafting the letter on December 9 and sent it to Mrs. Jones that day.
Therefore, he had Saturday evening, all day Sunday, and a period of time on
Monday to reflect before he sent the letter. The letter was written on Boling’s
official Commonwealth’s Attorney letterhead and made statements about
Jones’s case, including the following:
(1) The case was handled outside “normal protocol” to allow then- Commonwealth’s Attorney Lynn Pryor to “work hand in hand with Beshear to ensure that Jones was punished to get back at his grandparents.”
(2) “This case was never sexual assault. There was no sexual gratification involved . . . . Jones should have been offered a guilty plea to Assault 2nd Degree or Wanton Endangerment First Degree.”
(3) Jones was “targeted” and “evidence was destroyed.”
(4) The prosecution did not “pass the smell test.”
(5) “Jones [sic] biggest problem is that the Democratic Party controlled the prosecutor, the judge he stood before and Jones’ own attorney. Then you bring in Andy Beshear to make sure that the locals are keeping control, while legally having been removed from the case.”1
(6) “He [(Dayton Jones)] needs your help to fix the corruption that exists between the local democratic party and Attorney General Andy Beshear’s Office.”
Ultimately, Governor Bevin commuted Jones’s sentence to time served.
The Governor’s decision to commute the sentence, and Boling’s letter,
received media attention. Thereafter, Boling issued a public statement
1 The letter states that “Tony and Jackie Jones were longtime supporters of the
local Democratic Party. They got to a point where they could no longer condone the conduct of the party. They upset the then Commonwealth’s Attorney and other local elected officials.” 4 apologizing to the community and indicated that he was merely trying to advise
the Governor of the Joneses’ beliefs. However, he failed to note in the letter
that he was expressing their beliefs as opposed to his own. In his public
apology, Boling stated that he does not believe the court system or the Attorney
General’s office was politically motivated in its handling of the case.
On January 10, 2020, Boling met with the two Circuit Judges in the
Christian Circuit Court and specifically apologized to each judge. At that time,
Boling stated he was removing himself from their respective courtrooms for the
next few weeks. On January 17, 2020, both judges indicated they had filed, or
were going to file, a request for disciplinary inquiries by the KBA. Both judges
indicated that during the pendency of the KBA proceedings neither felt
comfortable with Boling personally appearing before them. As a result, Boling
and the judges reached an informal agreement that, during the pendency of the
disciplinary inquiry, Boling would not personally appear before either judge
unless the judge specifically requested his appearance.2
The Inquiry Commission issued an Inquiry Commission Complaint on
February 28, 2020. The Complaint alleges violation of SCR 3.130(8.4)(c), which
prohibits a lawyer from engaging in dishonest conduct, and SCR
3.130(3.3)(a)(1) which states “[a] lawyer shall not knowingly . . . make a false
statement of fact or law to a tribunal or fail to correct a false statement of
2 Since January 9, 2020, Boling has only personally appeared in Christian Circuit Court twice and via Zoom twelve times and only when one of the judges specifically requested his appearance.
5 material fact or law previously made to the tribunal by the lawyer.”
Additionally, the Complaint alleges violation of SCR 3.130(8.2)(a), which states,
“[a] lawyer shall not make a statement that the lawyer knows to be false or with
reckless disregard as to its truth or falsity concerning the qualifications or
integrity of a judge, adjudicatory officer or public legal officer, or of a candidate
for election or appointment to judicial or legal office.”
Boling responded to the Inquiry Commission Complaint on April 30,
2020. According to Boling, he prepared the letter to Governor Bevin under
narrow time circumstances and based the contents of the letter on information
previously provided to him by the Joneses. He did not review any documents
prior to writing the letter. Boling also stated that he genuinely believed the
criminal case against Jones and the other defendants had been wrongly
charged. While all defendants deserved punishment, he did not believe the
facts supported a sexual assault charge. The broader statements regarding
politics and possible motives of those involved in the case were based on beliefs
of the Joneses, which were not Boling’s own beliefs. However, Boling failed to
distinguish the portions of the letter addressing legal issues from the political
and subjective statements, the latter of which he should have expressly
attributed to the Joneses.
On September 11, 2020, Boling filed a motion for consensual discipline
pursuant to SCR 3.480(2). That rule states:
The Court may consider negotiated sanctions of disciplinary investigations, complaints or charges prior to the commencement of a hearing before a Trial Commissioner under SCR 3.240. Any member who is under investigation pursuant to SCR 3.160(2) or 6 who has a complaint or charge pending in this jurisdiction, and who desires to terminate such investigation or disciplinary proceedings at any stage of it may request Bar Counsel to consider a negotiated sanction. If the member and Bar Counsel agree upon the specifics of the facts, the rules violated, and the appropriate sanction, the member shall file a motion with the Court which states such agreement . . . . The Court may approve the sanction agreed to by the parties, or may remand the case for hearing or other proceedings specified in the order of remand.
Boling asked this Court to enter a public order imposing a sixty-day
suspension, probated for one year, conditioned on Boling: (1) during the
probation period, receiving no new disciplinary charges arising from any
disciplinary proceeding instituted after entry of the order, in which event the
KBA Office of Bar Counsel may seek to revoke his probation; and (2) paying all
costs of this disciplinary proceeding. While Boling acknowledged violation of
SCR 3.130(8.2)(a) and SCR 3.130(8.4)(c), he asserted that his conduct did not
violate SCR 3.130(3.3)(a)(1) because the letter did not constitute a submission
to a tribunal as described by SCR 3.130(1.0)(m), which defined “tribunal” as
an arbitrator in a binding arbitration proceeding or a legislative body, administrative agency, disciplinary or admissions entity created by the Supreme Court, or other body acting in an adjudicative capacity. A legislative body, administrative agency or other body acts in an adjudicative capacity when a neutral official, after the presentation of evidence or legal argument by a party or parties, will render a binding legal judgment directly affecting a party’s interests in a particular matter.
Boling submitted that the Governor’s exercise of the constitutional executive
discretionary function of pardon or commutation is not an adjudicative
function. Therefore, he requested that the alleged SCR 3.130(3.3)(a)(1)
violation be dismissed.
7 The KBA had no objection to Boling’s motion for consensual discipline
and stated that, after reviewing the facts and relevant case law, it determined
that a sixty-day suspension, probated for one year, was appropriate, citing
several cases. On October 29, 2020 this Court rejected the motion for
consensual discipline. We found Boling’s conduct was particularly egregious
because he was the Christian County Commonwealth’s Attorney at the time he
wrote the letter, he used his official Commonwealth’s Attorney letterhead, and
he signed the letter as the Commonwealth’s Attorney. Because Boling wrote
the letter in his official capacity, it undoubtedly conveyed to the Governor that
the current Commonwealth’s Attorney was in favor of the pardon. The Court
denied Boling’s motion to impose a sixty-day suspension, probated for one
year, and remanded KBA file number 20-DIS-0010 to the KBA for further
proceedings pursuant to SCR 3.480(2).
KBA File 20-DIS-0056 - The Brafman Matter
Meanwhile, on May 4, 2020 the Inquiry Commission initiated a
complaint against Boling for prosecutorial misconduct. On April 8, 2019
Boling represented the Commonwealth in the trial of Karen Brafman in
Christian Circuit Court. Brafman, who suffered from mental illness since
childhood, was charged with two counts of arson and six counts of attempted
murder arising from the attempted burning of a house trailer. The police
reports attached to the Inquiry Commission Complaint indicated that Brafman
had been harassing her neighbors, an interracial couple and their four
interracial children, by threatening and yelling racial slurs at them. Kentucky
8 State Police Detective Scott Steward investigated the crimes and testified at
trial. Boling avoided eliciting information from Steward about Brafman’s
intoxication and eventually opposed a voluntary intoxication jury instruction
and argued the only evidence of intoxication was the defendant’s
uncorroborated testimony.
During a lunch break in the course of the trial Boling discussed
Brafman’s intoxication with Detective Steward at counsel table. Unbeknownst
to both men, the court’s video system was still on and their conversation was
recorded:
Steward: So what do you think? Shit, this thing’s flying.
Boling: I know.
Steward: I’ve never had a trial go this fast. I mean, is that good?
Boling: Straightforward. I mean, this is bullshit (pointing to defense table).
Steward: I thought he’d ask me more. Shit.
Boling: See, what I think he thinks is he’s waiting for Calloway3 to get up here. I ain’t putting him on. This whole bullshit of she doesn’t remember.
Steward: I don’t give a shit.
Boling: Well, here’s my thing you don’t remember, but you remember drinking with him. You remember all this other stuff but you can’t remember this? Nah, nah. That’s selective memory.
Steward: Well that’s so screwed up she can’t. I mean, whatever.
Boling: Yeah.
3 Calloway refers to Craig Calloway who lived in the trailer Brafman set on fire. 9 Steward: She knew enough to run over, strip her clothes off, wash ‘em, take a shower.
Boling: Yeah. Yep. I thought about putting you back on and saying did she look like she was high?
Steward: Well, she was out of her fricking mind.
Boling: That’s why I didn’t ask that question (laughter).
Steward: Yeah and I didn’t want to answer that question so . . .
Boling: That’s why I didn’t ask that.
Steward: I was waiting for him to start down that road and go well you know.
Boling: And you see that’s why I didn’t go there because I’m thinking you know she was all over the place.
Steward: She was.
Boling: Okay, yeah that one could be argued.
Steward: She was meth-ed out.
Boling: And none of that’s in the record. As far as what the record has in it is she took a shower.
At trial Brafman maintained that she was intoxicated and did not
remember anything that happened from the early morning hours before the fire
until the police arrested her. Brafman was the only witness to testify to her
intoxication. Brafman’s voir dire and opening statement also contemplated
voluntary intoxication as a defense, specifically that she was too intoxicated to
form legal intent or to remember what happened.
Later that afternoon the trial court heard arguments concerning jury
instructions. Defense counsel requested a voluntary intoxication jury
10 instruction based on Brafman’s testimony that she had been awake for five
days, was taking methamphetamine and ecstasy after drinking all day, and
had not been taking medications prescribed to her. Boling opposed the
voluntary intoxication instruction, stating, “I don’t think there’s been sufficient
establishment that she was voluntarily intoxicated enough to not know what
she was doing.” The trial court declined to give a voluntary intoxication
instruction because Brafman’s testimony regarding her intoxication was
uncorroborated.
During closing argument, Boling argued that Brafman was not truthful
regarding her use of drugs and that no one testified that she appeared under
the influence:
It’s not drugs, it’s not high. Not one single witness testified to you that she appeared under the influence, intoxicated, drugged or anything. Not one. Deputy Sanderson testified. He talked to her. Did he say, ‘Man, she looked like she was high. She looked like she was crazy. She didn't know what she was doing.’? No. Detective Steward testified. Did he testify to that? No.
Brafman, 612 S.W.3d at 860. On July 3, 2019, Brafman was convicted of first-
degree arson, six counts of attempted murder and second-degree arson, four of
which were charged as hate crimes. She received a life sentence consistent
with the jury’s recommendation.
The May 4, 2020, Inquiry Commission Complaint stated that Boling’s
conduct in the Brafman case may have violated SCR 3.130(3.3)(a)(1) and SCR
3.130(8.4)(c). As noted above, SCR 3.130(3.3)(a)(1) states, “[a] lawyer shall not
knowingly . . . make a false statement of fact or law to a tribunal or fail to
correct a false statement of material fact or law previously made to the tribunal 11 by the lawyer.” SCR 3.130(8.4)(c) prohibits a lawyer from engaging in
dishonest conduct. Boling responded and requested that the complaint be
dismissed, or, in the alternative, held in abeyance pursuant to SCR 3.180(2)
because Brafman’s appeal was pending in this Court. Boling’s response
highlights the evidence that established the intentional nature of Brafman’s
behavior on the day of the fire. Boling stated that the comments he made were
off-the-cuff comments and argues that engaging in “armchair quarterbacking”
after the fact to take those brief comments out of context of all the other
evidence is neither fair nor reasonable. The KBA disciplinary case was held in
abeyance pending resolution of Brafman’s appeal.
On December 22, 2020, this Court reversed the trial court’s judgment
and remanded the case for a new trial. Brafman, 612 S.W.3d at 871. Boling’s
conduct was reviewed for palpable error and the Court concluded that reversal
was warranted because the alleged misconduct was flagrant. Id. at 863. The
Court weighed the usual four factors in determining whether Boling’s improper
conduct was sufficiently flagrant to require reversal:
(1) whether the remarks tended to mislead the jury or prejudice the accused; (2) whether they were isolated or extensive; (3) whether they were deliberately or accidentally placed before the jury; and (4) the strength of the evidence against the accused.
Id. at 861 (citations omitted).
The Court held that while carefully crafting his questioning to avoid
eliciting evidence of Brafman’s intoxication was not misconduct, Boling’s
closing argument constituted flagrant misconduct. Id. Although the evidence
against Brafman was strong, this Court found the other three factors weighed 12 heavily enough in Brafman’s favor to warrant reversal. Id. at 862.
Additionally, Boling knew Brafman’s intoxication was material to the case and
true and arguing against the voluntary intoxication jury instruction rendered
the trial fundamentally unfair. Id.
On February 5, 2021, Boling filed a motion for consensual discipline to
resolve both the Jones and Brafman matters. Boling proposed, and the KBA
did not object to, a 120-day suspension with sixty days to serve and sixty days
probated for two years conditioned on Boling (1) receiving no new disciplinary
Charges arising from any disciplinary proceeding instituted after the entry of
said Order, in which event the KBA Office of Bar Counsel may seek to revoke
said probation; and (2) paying all costs of these disciplinary proceedings. That
sanction was proposed to resolve both the Jones and Brafman disciplinary
matters.
In his motion Boling acknowledged that he should not have objected to
the voluntary intoxication instruction and should not have stated to the jury in
closing argument that the arson investigator never testified that Brafman
appeared intoxicated. Boling also stated that at trial he subjectively did not
believe Brafman was intoxicated at the time she set the fire. It appeared to him
that Brafman took deliberate and intentional steps to set the fire and her
conduct was not reflective of someone who was intoxicated. However, Boling
acknowledges that his conduct denied Brafman a fair trial and recognizes his
broader duties to the public and the justice system than other attorneys
involved in the criminal justice system.
13 Boling has been a criminal trial attorney for twenty-seven years, twelve of
those as a prosecutor and nine as the Commonwealth’s Attorney. According to
Boling this is the first time his prosecutorial actions have ever been
characterized as anything other than harmless error. He also acknowledges
that his conduct violated SCR 3.130(3.3)(a)(1) and SCR 3.130(8.4)(c) as set out
in the Inquiry Commission Complaint. In its response the KBA stated that the
proposed 120-day suspension (sixty days to serve, sixty days probated) would
appropriately sanction Boling for his misconduct and permit the Christian
County legal community to move forward from the events detailed in the
Inquiry Commission Complaint.
In an April 29, 2021 Opinion, this Court rejected the proposed 120-day
suspension. The Court reasoned that Boling misused his position of trust and
committed flagrant misconduct. The Court noted that “our Rules of
Professional Misconduct provide varying degrees of discipline, including
permanent disbarment. On remand we urge the parties to recognize the serious
nature of this misconduct in considering appropriate discipline.”
On September 1, 2021, the Inquiry Commission issued a two-count
charge against Boling in the Jones matter. Count 1 charged Boling with
violation of SCR 3.130(8.2)(a), which states that “a lawyer shall not make a
statement that the lawyer knows to be false or with reckless disregard as to its
truth or falsity concerning the qualifications or integrity of a judge . . . .” The
Inquiry Commission charged Boling with violation of this rule when, in the
pardon letter, he stated that Jones’s “biggest problem is that the Democratic
14 Party controlled the prosecutor, the judge he stood before and Jones’ own
attorney.” Count 2 charged Boling with violation of SCR 3.130(8.4)(c) which
provides that “[i]t is professional misconduct for a lawyer to . . . engage in
conduct involving dishonesty, fraud, deceit or misrepresentation.” The Charge
asserted that Boling violated this rule when he made multiple false statements
in the letter to then-Governor Bevin in support of a pardon on Jones’s criminal
case.
On September 15, 2021, the Inquiry Commission filed a three-count
charge against Boling in the Brafman matter. Count 1 charged Boling with
violating SCR 3.130(3.3)(a)(1) which states “[a] lawyer shall not knowingly . . .
make a false statement of fact or law to a tribunal or fail to correct a false
statement of material fact or law previously made to the tribunal by the
lawyer.” The Inquiry Commission charged Boling with violating this rule
because “he took deliberate and calculated actions to mislead the jury in the
Brafman trial, as found by the Kentucky Supreme Court.” Count 2 charged
Boling with violating SCR 3.130(3.8)(c), which provides that
[t]he prosecutor in a criminal case shall . . . make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense, and, in connection with sentencing, disclose to the defense and to the tribunal all unprivileged mitigating information known to the prosecutor, except when the prosecutor is relieved of this responsibility by a protective order of the tribunal.
Count 3 charged Boling with violating SCR 3.130(8.4)(c), which provides that
“[i]t is professional misconduct for a lawyer to . . . engage in conduct involving
dishonesty, fraud, deceit or misrepresentation.” Boling was charged with 15 violation of these rules for making misleading statements to the jury in the
Brafman trial.
Boling responded to all Charges on November 29, 2021 and
acknowledged that there is evidence to support both charges in the Jones
matter but contends that there are mitigating factors. Boling contends that he
did not violate any of the three counts in the Brafman matter and that his
actions as the prosecuting attorney were ethical and legally appropriate. The
two Charges were consolidated, a Trial Commissioner was appointed on
February 11, 2022 and the hearing in these matters began on August 16,
2022.
During the hearing, the Trial Commissioner heard testimony from several
witnesses, including Judge John L. Atkins, John Heck (the Special Prosecutor
in Jones’s case), and Boling. Judge Atkins testified that he was not controlled
by anyone in the Jones case, and that there was no indication of any undue
influence by anyone involved. Judge Atkins stated that he was hurt by the
allegations in Boling’s letter and disappointed. Heck provided additional
details about Jones’s case, including that the victim was a fifteen-year-old boy
who passed out after drinking too much. Jones instigated an assault on the
victim by procuring a twelve-to-fourteen-inch sexual toy, removed the victim’s
pants and inserted it into his anus4. The victim required emergency surgery
for a perforated bowel, which is a life-threatening condition. Heck testified
4Notably, in the pardon letter Boling put “sexual assault” in quotes as if to imply that the actions that occurred did not constitute an assault and characterized the victim as a “young adult” when he was in fact fifteen-years old. 16 about the allegations Boling made in the pardon letter and described the
allegations as “complete fiction,” “not accurate,” and ultimately described the
letter as “patently false throughout.”
Boling acknowledged that evidence existed to support both Charges in
the Jones matter but reiterated that he did not intend to cause harm and took
many steps to mitigate any damage he caused. In the Brafman matter, he
argues that his conduct was ethical and legally appropriate and that the Court
did not have all the relevant information when it rendered its opinion in
Brafman. The Trial Commissioner considered the ABA Standards for Imposing
Lawyer Sanctions and noted that several aggravating and mitigating factors
applied to Boling’s matters. Ultimately, on December 7, 2022, the Trial
Commissioner found Boling guilty of all Charges and recommended that Boling
be suspended from the practice of law for five years.
On January 3, 2023, Boling appealed the Trial Commissioner’s report
and recommendation to the Board of Governors. However, Boling then advised
the KBA that he planned to resign as Commonwealth’s Attorney, effective
February 28, 2023. Boling and the KBA tendered an agreed order which stated
that the parties agreed that Boling’s appeal to the Board of Governors was
withdrawn, that the Disciplinary Clerk shall submit the Trial Commissioner’s
report to this Court pursuant to SCR 3.370, and that Boling would not oppose
the recommended five-year suspension. The Trial Commissioner’s findings are
now before this Court.
17 ANALYSIS
The Trial Commissioner recommended a five-year suspension. The KBA
and Boling have agreed to this recommendation. Boling’s misconduct does not
precisely match misconduct in prior attorney disciplinary opinions from this
Court. However, there are a few cases previously relied upon by the KBA while
proceeding in these disciplinary matters and relied upon by this Court in its
two prior confidential Opinions.
In Kentucky State Bar Association v. Lewis, 282 S.W.2d 321, 322 (Ky.
1955), attorney Lewis filed an affidavit in support of a motion to require a judge
to vacate the bench. In the affidavit Lewis alleged political corruption and
conspiracy between several judges, unnamed political bosses, and defendants
named in an underlying case. Id. at 323. Lewis argued that he prepared the
pleading based on an affidavit of his clients and he believed the charges in the
affidavit were true. Id. at 324. The Court disagreed with Lewis and held that
“where [Lewis] makes charges of judicial corruption such as he made here, the
attorney must be prepared to introduce substantial competent evidence in
support of those charges.” Id. The Court suspended Lewis from the practice of
law for six months. Id. at 325.
Boling, like Lewis, relied upon the statements and opinions of the
Joneses in preparing the December 7, 2019 letter. Additionally, and unlike
Lewis, Boling issued a public apology in which he specifically stated he did not
believe the court system was politically motivated. Boling’s case is like Lewis
because Boling made allegations of improprieties within the local justice
18 system, with statements like the prosecution did not “pass the smell test,” the
Democratic Party controlled the case, and alleging that the Commonwealth’s
Attorney sought to punish Jones to get back at his grandparents. However,
Lewis was suspended for six months, which is clearly less significant than the
recommended five-year suspension. Here, Boling’s actions cast the criminal
justice system in Christian County into disrepute. Additionally, Lewis relied on
a sworn statement of his clients in making the allegations of corruption, while
Boling supposedly based his letter in part on mere conversations shared with
the Joneses. The Brafman matter is also before this Court for consideration in
determining whether a five-year suspension is appropriate.
The KBA previously cited Kentucky Bar Association v. Heleringer, 602
S.W.2d 165 (Ky. 1980), which involved events surrounding litigation to
determine the constitutionality of an abortion regulation ordinance. A party
sought a restraining order to prohibit enforcement of the ordinance. Id. at 166.
Heleringer, who drafted the ordinance, sought to intervene in the action on
behalf of Right to Life of Louisville, Inc. Id. The Assistant County Attorney was
not present at the hearing for a restraining order, and while Heleringer tried to
locate him, the trial court entered the restraining order. Id. The next day,
Right to Life of Louisville, Inc. held a press conference and Heleringer called the
judge’s refusal to wait longer or find the Assistant County Attorney “highly
unethical and grossly unfair.” Id. That remark was the basis for the
disciplinary action, and Heleringer received a public reprimand. Id. at 169.
19 Heleringer is distinguishable from Boling’s case because of the various
statements Boling made. Boling essentially alleged misconduct by Pryor,
stating she tried to maintain control over the case despite having been removed
as prosecutor. He alleged a conspiracy that aimed to punish Jones, and
asserted that the Democratic Party controlled the prosecutor, the judge, and
Jones’s own defense attorney. These sweeping statements, given Boling’s lack
of personal experience with Jones’s case, were unwarranted and
unprofessional. This conduct is plainly more egregious than the single
statement made by Heleringer. Further, the prosecutorial misconduct
committed in the Brafman matter resulted in a new trial, with the Court
characterizing Boling’s actions as deliberate, calculated, exploitative, and
dishonest. Brafman, 612 S.W.3d at 863.
In Kentucky Bar Association v. Blum, 404 S.W.3d 841, 845 (Ky. 2013),
Blum alleged an administrative hearing officer conspired against his client to
frame the client and cause the tribunal to rule against the client. Blum also
accused the hearing officer of incompetence and involvement in a quasi-legal
scheme to defraud Blum’s client; claimed the hearing was rigged and a “sham;”
and impugned the character of the hearing officer. Id. In addition to these
accusations, Blum used hostile, argumentative and threatening advocacy
throughout the proceedings that formed the basis for the disciplinary action.
Id. at 856-57. The Inquiry Commission issued a five-count charge against
Blum and he was ultimately suspended for 181 days. Id. at 858. In its
consideration of the appropriate discipline, the Court highlighted SCR 3.510(1),
20 which requires any member of the bar suspended for more than 180 days to
undergo a Character and Fitness Committee review and only resume practice
upon this Court’s order.
In comparing Boling’s case to Blum, Boling also has five counts against
him in the two Charges. The Jones letter made similarly damning statements
against the legal process and its participants. While Blum only received a 181-
day suspension, Boling’s misconduct resulted in significant media attention
and occurred while he was serving the public and our justice system as a
Commonwealth’s Attorney. Pairing the two instances of Boling’s misconduct,
five years is an appropriate suspension.
Boling’s misconduct is particularly egregious because he was the
Christian County Commonwealth’s Attorney at the time he wrote the letter, he
used his official Commonwealth’s Attorney letterhead, and he signed the letter
as the Commonwealth’s Attorney. Because Boling wrote the letter in his official
capacity, it undoubtedly conveyed to the Governor that the current
Commonwealth’s Attorney was in favor of the pardon. Additionally, as noted
above, despite there only being one letter, that letter contained numerous
allegations of impropriety and professional misconduct on the part of others.
Even though Boling recanted much of what he stated in the letter in his public
apology, that does not overshadow the fact that he made the statements in the
first place. As to the Brafman matter, we note that
[a] prosecuting attorney has a broader duty to the public and to our system of justice than to obtain convictions. The Commonwealth’s Attorneys represent the people of this state, and in a degree should look after the rights of a person accused of a 21 crime by endeavoring to protect the innocent and seeing that truth and right shall prevail. . . . [i]t is his duty to present his cause fairly, and not impress upon the jury any deduction that is not from the evidence strictly legitimate.
Brafman, 612 S.W.3d at 862-63 (quotations omitted). Boling plainly
disregarded these duties.
The Commonwealth’s Attorney for Christian County represents the
people of that county and is in a position of trust. In Kentucky Bar Association
v. Carmichael, 244 S.W.3d 111, 112 (Ky. 2008), the Court permanently
disbarred a Commonwealth’s Attorney who extorted money from criminal
defendants in exchange for agreeing not to prosecute. In considering
aggravating factors, the Court was particularly troubled by Carmichael’s
position of authority and influence as a Commonwealth’s Attorney. Id. at 115.
While Carmichael’s conduct was certainly more egregious than what is
presented here, we consider Boling’s position as Commonwealth’s Attorney a
relevant factor in assessing the appropriate discipline. In Kentucky Bar
Association v. Dixon, 373 S.W.3d 444, 451 (Ky. 2012), in which Dixon, a
County Attorney, requested a private reprimand for his misconduct, the Court
determined that the misconduct warranted a greater sanction, in part because
Dixon, as an elected official, was “entrusted by the citizens of Knox County to
act as Knox County Attorney.” Id.
Like the Trial Commissioner, we note that Boling has no prior
disciplinary history outside of these matters, which serve as mitigation in
considering the appropriate discipline. In addition, Boling issued a press
release apologizing for his actions in the Jones matter and personally 22 apologized to the Christian County judges. He also presented several witnesses
who testified to his good character before the Trial Commissioner. However, we
also note the presence of aggravating factors: (1) dishonest or selfish motive in
gaining a conviction (Brafman); (2) a pattern of misconduct (dishonesty); (3)
multiple offenses; (4) refusal to acknowledge wrongful nature of conduct in
Brafman; and (5) substantial experience in the practice of law (twenty-seven
years).
In sum, Boling misused his current position of trust, attacked the
prosecutorial discretion of the predecessor Commonwealth’s Attorney and cast
doubt on the integrity of the former prosecutor, the Christian Circuit Court and
Jones’s defense counsel. It is immaterial that Boling believed, given the
eleventh-hour submission of the letter, that then-Governor Bevin would not see
the letter, or that the pardon would not be granted. In addition, although
Boling now attributes the political and subjective statements to the Joneses,
even time constraints seem an unlikely reason for his failure to distinguish
those from his own legal analysis in a relatively brief letter. As for the Brafman
matter, we are likewise troubled by Boling’s actions that led this Court to
conclude the trial was “fundamentally unfair” and characterize Boling’s
conduct as “unnecessarily exploitative and dishonest.” Brafman, 612 S.W.3d
at 863.
23 ACCORDINGLY, IT IS ORDERED THAT:
1. Richard Boling is suspended from the practice of law in the
Commonwealth of Kentucky for five years. The period of suspension
shall commence on the date of entry of this Opinion and Order.
2. Boling resigned as Commonwealth’s Attorney, effective February 28,
2023. If he has engaged or attempted to engage in the practice of law
in any capacity outside of his role as Commonwealth’s Attorney, the
following shall apply:
a. If he has not already done so, pursuant to SCR 3.390, Boling
shall promptly take all reasonable steps to protect the interests
of his clients, including, within ten days after the issuance of
this order, notifying by letter all clients of his inability to
represent them and of the necessity and urgency of promptly
retaining new counsel and notifying all courts or other tribunals
in which Boling has matters pending. Boling shall
simultaneously provide a copy of all such letters to the Office of
Bar Counsel;
b. If he has not already done so, pursuant to SCR 3.390, Boling
shall immediately cancel any pending advertisements, shall
terminate any advertising activity for the duration of the term of
suspension, and shall not allow his name to be used by a law
firm in any manner until he is reinstated;
24 3. Pursuant to SCR 3.390, Boling shall not, during the term of
suspension and until reinstatement, accept new clients or collect
unearned fees;
4. In accordance with SCR 3.450, Boling shall pay all costs associated
with these disciplinary proceedings against him, for which execution
may issue from this Court upon finality of this Opinion and Order.
All sitting. VanMeter, C.J.; Bisig, Conley, Keller, Lambert, and Nickell,
JJ., concur. Thompson, J., concurs in part and dissents in part by separate
opinion.
ENTERED: June 15, 2023
______________________________________ CHIEF JUSTICE VANMETER
THOMPSON, J., CONCURRING IN PART AND DISSENTING IN PART: I
agree with the portion of the majority opinion upholding that some amount of
discipline is appropriately imposed on Richard Boling for sending the
inappropriate letter urging a pardon, but I vehemently disagree that Boling’s
alleged prosecutorial misconduct merits any (or more than only minimal)
discipline based on the facts before us. Therefore, I disagree that a five-year
suspension from the practice of law is the appropriate discipline to be imposed
based on both charges and write separately to address my reasoning.
25 Near the end of the prosecution of Karen M. Brafman for first-degree and
second-degree arson and six counts of attempted murder, of which four were
charged as hate crimes, the Commonwealth Attorney, Richard Boling, had a
conversation with arson investigator Detective Steward which was recorded on
a “hot mic.” Detective Steward stated he believed Brafman was intoxicated at
the time of her arrest. At worst, this was a minor Brady violation5 as Boling did
not immediately inform Brafman’s defense counsel.
However, there was a significant lapse of time between when the arson
was believed to have occurred and when Detective Steward arrived to
investigate and observed Brafman in a state of intoxication.6 Therefore, an
observation that Brafman was intoxicated then would have by no means
indicated that Brafman was intoxicated when she set the fire. She could have
ingested substances to become intoxicated sometime after setting the fire and
still been suffering from those effects when Detective Steward arrived. Finally,
there was proof submitted that Brafman had awareness of what she had done
as after setting the fire she returned to her home, took a shower and was in the
process of washing her kerosene-soaked clothing.
5 Brady v. Maryland, 373 U.S. 83, 87 (1963).
6 I calculate this delay as follows: The fire was set at around 5:00-5:30 a.m. according to the victims. The report of the crime (rather than the report of the fire, which required a response by firefighters) was received at approximately 6:45 a.m. by the Kentucky State Police (KSP), and the KSP officers arrived at the scene at approximately 9:00 a.m. Sometimes after their arrival, Detective Steward questioned Brafman. 26 The alleged prosecutorial misconduct relates to Boling’s closing
argument in the trial. In Brafman v. Commonwealth, 612 S.W.3d 850 (Ky.
2020), our Court reversed Brafman’s convictions for arson and murder and life-
sentence and remanded to the trial court based upon the fact that Boling had
actual knowledge that the defendant was very intoxicated when she was
arrested and may have been entitled to a voluntary intoxication defense but for
the fact that the defense attorney did not question the witnesses adequately (or
cross-examine the detective with knowledge of the intoxication at all) to
determine if Brafman was intoxicated.
Our Court in reviewing Boling’s conduct in the direct appeal in Brafman
did not take issue with the fact that Boling declined to do the defense’s job for
it and did not himself question the investigative detective specifically as to
whether Brafman was intoxicated. The Court also acknowledged that Boling
was technically correct in stating in the Commonwealth’s closing argument
that no one (other than Brafman) had testified that Brafman was intoxicated.
The Court also did not fault the trial court for failing to give a voluntary
intoxication instruction given the state of the evidence. Id. at 859.
This was not a case in which the prosecutor argued facts not in evidence
or misstated the evidence; Boling accurately stated the evidence. Our Court
only faulted Boling for giving a closing argument that while technically correct
based on the evidence, was incorrect as it implied that the actual facts were
different than he knew them to be. Id. at 861-62. What Boling was exactly
27 required to do to conduct a proper closing argument under these
circumstances is unclear.
Based on this closing argument, Boling was then subject to discipline by
the Kentucky Bar Association (KBA) for “knowingly making a false statement”
and engaging in dishonest conduct. Such discipline ignores that we have an
adversarial system that relies on both sides vigorously advocating for their
respective positions.
“The very premise of our adversary system of criminal justice is that
partisan advocacy on both sides of a case will best promote the ultimate
objective that the guilty be convicted and the innocent go free.” Herring v. New
York, 422 U.S. 853, 862 (1975). “The system assumes that adversarial testing
will ultimately advance the public interest in truth and fairness.” Polk Cnty. v.
Dodson, 454 U.S. 312, 318 (1981).
“[V]igorous representation [on both sides] follows from the nature of our
adversarial system of justice” and should result in truth and fairness. Penson
v. Ohio, 488 U.S. 75, 84 (1988). Prosecutors’ “vigorous and fearless
performance of [their duties] . . . is essential to the proper functioning of the
criminal justice system.” Imbler v. Pachtman, 424 U.S. 409, 427–28 (1976).
Similarly, it is the duty of a defense attorney to “use every honorable effort to
secure for the defendant a fair trial[.]” Goff v. Commonwealth, 241 Ky. 428, 44
S.W.2d 306, 308 (1931).
Prosecutors should “prosecute with earnestness and vigor” and “strike
hard blows” but not “foul ones” and have a “duty to refrain from improper
28 methods calculated to produce a wrongful conviction” as well as “use every
legitimate means to bring about a just one.” Berger v. United States, 295 U.S.
78 (1935). Prosecutors “should in an honorable way use every power that [they
have], if convinced of the defendant’s guilt, to secure his conviction[.]” Goff, 44
S.W.2d at 308.
There is nothing in Boling’s conduct before the trial court to establish
that he acted unethically as an attorney in fulfilling his designated
prosecutorial role. He argued about the evidence that was actually before the
trial court which he rightfully believed supported a conviction and did not
warrant a defense, rather than the evidence that was not before the trial court.
While the “hot mic” exchange was unseemly, it only relates to the discipline in
that it provides a basis for the KBA’s awareness that Boling, at the time of that
conversation, knew someone else’s opinion rather than just Brafman’s own
testimony might support her claim of voluntary intoxication.7 What evidence
came before the trial court was the product of both Boling’s efforts in serving
his role as prosecutor, and Brafman’s own attorney’s efforts in fulfilling the role
of defense counsel.
7 This exchange does not necessarily indicate that Boling had actual knowledge that Detective Steward believed Brafman was “out of her fricking mind” prior to him telling Boling that during the break. It is also equally consistent with Boling suspecting that Brafman may have been observed to be intoxicated by Detective Steward, but not actually knowing if this was so, and thus strategically choosing not to question him on this matter. This is similar to a defense attorney forgoing asking a defendant before the trial “Did you do it?” so as to not be put in a position of knowingly presenting false evidence at trial. In any event, Boling’s discipline is not premised on him engaging in a Brady violation. Indeed, the knowledge that Brafman was intoxicated and investigating officers should have observed this, was uniquely within her own knowledge or reasonably inferable. 29 Of course, the adversarial system breaks down if defense counsel
provides ineffective assistance, which “so undermined the proper functioning of
the adversarial process that the trial cannot be relied on as having produced a
just result.” Strickland v. Washington, 466 U.S. 668, 686 (1984). But the
solution to ineffective assistance of defense counsel is not for the
Commonwealth Attorney to instead become the defendant’s advocate. As
acknowledged in Brafman, 612 S.W.3d at 861, “[t]he Commonwealth is not
obligated to make the defendant’s case for her.” See also Farris v.
Commonwealth, 836 S.W.2d 451, 455 (Ky. App. 1992) (explaining “the
Commonwealth is not required to investigate the case for the appellant”),
overruled on other grounds by Houston v. Commonwealth, 975 S.W.2d 925, 931
(Ky. 1998). The majority’s opinion is distorting the Commonwealth Attorney’s
role by requiring this sort of advocacy for the defense.
Boling takes responsibility by conceding that he should not have objected
to the voluntary intoxication instruction. Boling’s advocacy for the
Commonwealth during Brafman’s trial was appropriate given the evidence
actually admitted at trial, his reasonable belief that Brafman took deliberate
and intentional steps to both set the fire and conceal her guilt that were at
odds with her claim of intoxication, and his duty to seek a conviction where he
sincerely believed in her guilt.
Having a plan to raise a voluntary intoxication defense, defense counsel
should have investigated who might be able to corroborate his client’s
testimony, formed a plan to produce the needed evidence at trial, and then
30 executed such a plan, which could have included cross-examining witnesses
likely to have such knowledge and/or calling witnesses on behalf of Brafman
known to have such knowledge.8 The responsibility for Brafman’s failure to
obtain an instruction on voluntary intoxication should be laid squarely at the
feet of her defense attorney who failed to appropriately develop the evidence
based on information which should have been available to the defense attorney
from the records of her arrest and Brafman herself. It is fundamentally unfair
to sanction Boling based on Brafman’s counsel’s failures.
Defense counsel’s lapse while showing ineffectiveness given the strategy
decided upon, was not necessarily prejudicial as it is well known that in
Kentucky that receiving a voluntary intoxication instruction to negate a
required state of mind pursuant to KRS 501.080(1) is rarely of any benefit to a
defendant in receiving a conviction to a lesser included offense.9
8 Boling indicated to Detective Steward his belief that perhaps the defense attorney thought to get such evidence admitted through cross-examination of the victim, but that Boling was not calling the victim. If this was the defense strategy, it was a risky one that ultimately proved to be a costly error.
9As illustrative of this understanding (although not authoritative in any respect) are two cases which relay counsels’ reasoning behind strategically deciding against trying to raise a voluntary intoxication defense. In Hodge v. Commonwealth, 2017-CA-000950-MR, 2018 WL 3202820 (Ky. App. June 29, 2018) (unpublished),
Hon. Sam Cox, who was part of Hodge’s defense team, testified that the team researched the voluntary intoxication defense, spoke with other attorneys about the defense, and talked to Hodge about how it is rarely a successful defense and how it tends to be an aggravator. . . . Hon. Valetta Browne . . . testified that she personally has never seen a case where the defense of voluntary intoxication was successful.
In Mason v. Commonwealth, 2016-CA-001898-MR, 2018 WL 4050747, at *2 (Ky. App. Aug. 24, 2018) (unpublished), counsel testified that “[t]o emphasize [the fact of the 31 I personally will not agree to censure an attorney for a robust closing
argument confined to the evidence presented to the jury which was made in
good faith and in furtherance of his responsibility to prosecute the guilty. Such
discipline could have a chilling effect on attorneys serving as vigorous
advocates, especially when their adversary is seemingly outmatched. While I
understand that Boling’s conduct may be viewed differently than that of any
other attorney, because of his duty to the public, the legislature declined to
impeach him for such conduct pursuant to Kentucky Constitution § 68 and, as
an ordinary attorney, he is no longer in such a role.10
Originally, we rejected a previous agreement that Boling would be
disciplined through a 120 days’ suspension with 60 days to serve. Boling has
now resigned as Commonwealth Attorney, effective February 28, 2023, and has
reached a new agreement with the KBA that he will not oppose the five years of
suggested disciplinary suspension. Boling’s resignation is a substantial
punishment in and of itself, and a five-year suspension not is necessary as the
complained of conduct was only possible based on his previous office. Boling’s
advocacy as a Commonwealth Attorney based on using official letterhead
defendant drinking] would, in counsel’s opinion, serve only to inflame the jury with little chance of succeeding on the voluntary intoxication defense.”
10 I do not, of course, make any argument that the Legislature’s failure to impeach Boling precludes any discipline based on his general fitness to practice law. See Commonwealth v. Stump, 247 Ky. 589, 57 S.W.2d 524, 525-27 (1933) (discussing that discipline of a Commonwealth Attorney for unfitness to practice law, resulting in his disqualification to serve as a Commonwealth Attorney, is not precluded by the fact that he could have alternatively been removed from office through impeachment).
32 cannot be repeated; he is also no longer in a position to act too vigorously on
behalf of the Commonwealth in a prosecution.
As writing a letter on official stationery which contains false statements
is the only conduct I would substantively punish, the overall punishment is
excessive. Accordingly, I concur in part and dissent in part.