12/15/2009 JAMESTOWN KY:
In a 2003 criminal case long overdue for trial, Senior Judge Gary Payne issued order for in camera review in Commonwealth of Kentucky v. James Faller. At issue were indictments dismissed by special prosecutor Jesse Stockton Jr.
Normally any criminal defendant would be pleased when a Prosecutor makes the decision to dismiss some or part of an indictment. Not in 03-CR-00084 in Russell Circuit Court. Defense Counsel for the Fallers objected to the hardship, inequitable results, and the possible Brady violations of such a dismissal.
Stockton’s offered his reason for dismissing half the claims were that they were civil claims, not criminal. Since the twenty eight indictments are nearly identical; Defense counsel Vincent Aprile II and Mark Stanziano wanted Stockton to take the stand to testify why half of the identical claims are civil matters and the other half are criminal matters.
Hardship: Defense Counsel claims burdens because the dismissed claims are from those individuals who have moved out of state. The Commonwealth would have brought these individuals in testify. Now that their claims are dismissed the financial burden would be on the Defendants.
Inequitable Results: The Russell Grand Jury was given testimony by several individuals including Amy Blonien on September 23, 2003 according Tony Kerr, the Russell Circuit Court Clerk. According to the indictment Amy Blonien claimed that another individual Donna Jo Blonien was owed $30,000.00 [thirty thousand dollars] for work between August 10, 2003 and August 23, 2003.
Donna Jo Blonien criminal complaint is one which was dismissed by Stockton. Complicating the issues that an unknown individual Amy Blonien of which no public records exist testifying concerning Donna Jo Bloniens claims against Faller; Defense counsel have uncovered police records from Oklahoma showing that Donna Blonien was taken into protective custody for a mental health evaluation between August 10, 2003 and August 23, 2003. This public record makes it impossible for Donna Jo Blonien to have any claims, criminal or civil against Jim Faller during the time period of which this unknown Amy Blonien swore to under oath to the Russell County Grand Jury. Defense Counsel believes this excessive financial claim unduly biased the grand jury into issuing all the indictments against the Fallers.
Brady: Under criminal rules the Prosecutors have to disclose information to defense counsel which may help the defendants in trial. The question Defense Counsel has is whether there is other discoverable material that Prosecutor Jessie Stockton has withheld concerning dismissing Donna Blonien and others claims against the Fallers. In short, if Stockton knew that perjury took place to the Russell County Grand Jury by a complaining witness whether it be this unknown Amy Blonien or others; he has a duty to disclose it. Or did Stockton dismiss indictments he knew to be without merit under the guise they were merely “civil”? These were the questions Aprile and Stanziano wanted to question Stockton under oath and in public scrutiny.
In Camera: Stockton brought Kentucky Assistant Attorney General Todd Lewis to argue against his taking the witness stand in the pretrial motion. Despite having case precedence for such testimony; Judge Gary Payne struck a compromise. He ordered Stockton to give written reasons why each dismissed indictment was civil and how it is different from the remaining indictments. Stockton’s written reasons are to be viewed by Judge Payne in private with Payne making a decision how to proceed thereafter.
