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Clay County, Kentucky's Corrupt Set Free; Retrial to Follow?

By William Peacock, Esq. on July 25, 2013 | Last updated on March 21, 2019

Yesterday, we brought you first half of the tale of Clay County’s most corrupt — eight individuals who allegedly conspired to fix elections, were convicted, and now, years later, are being set free on the basis of erroneous evidentiary rulings.

In addition to the prejudicial evidence of pandemic drug cultivation and dealing throughout Clay County over the past few decades, which bore no direct connection to the voter fraud at issue, the court also made numerous other mistakes with evidence directly related to the charged offenses.

Records of Voter fraud complaints

The court also admitted two sets of records of voter complaints alleging fraud in local elections. The evidence was admitted for the purpose of corroborating testimony about the group's knowledge of the complaints and their evolving tactics used to avoid detection. It was also used to contradict a defendant's grand jury testimony.

However, it was also pretty clearly prejudicial under the 403 "unfair prejudice" standard. Jurors would likely take the list of fraud complaints as written proof of the truth of the overall issue -- that vote-buying occurred between 2002 to 2006.


The government also sought to introduce barely-audible recorded conversations between the parties. The ordinary procedure in such cases is that both parties should provide transcripts. If there is no consensus, the judge determines accuracy in a pretrial hearing. The least preferential allowable method is presenting two transcripts, and letting jury sort it out.

The judge chose option (d) none of thee above. He took the prosecutor's transcripts and heavily edited the work, with an estimated one-thousand changes. The judge stated, at one point, that 90 percent of his changes were not substantive (and by extension, 10 percent were). Unfortunately, however unclear the law may have been before, the judge is not allowed to make substantive changes. The now-clear rule is:

A district court has the discretion to mark portions of the proposed transcript that it finds to be inaudible or unintelligible and order that those portions be removed from the transcript and marked accordingly. It also has the discretion to add words to enhance the completeness of the transcript. A district court cannot, however, make substantive changes--those that affect the meaning of the transcript--that are unprompted by either party.

The lesson? When in doubt, cut it out.

Other Inadmissible Evidence

The mistaken evidentiary rulings didn't end there. The court also improperly admitted evidence of witness tampering, including a burnt down trailer and a threatening MySpace message. At another point in the trial, the court allowed footage from a 1980s episode of Inside Edition, discussing the marijuana cultivation problem in Clay County. In that video, the not-yet-Judge Maricle discussed crooked elections.

Cumulative Error

We intimated yesterday that the mistakenly-admitted drug evidence alone may not have been sufficient to clear the "harmless error" standard and to overturn the convictions. However, the cumulative effect of the errors, including (deep breath) drug evidence unrelated to the charges brought, the Inside Edition video, the witness intimidation evidence, the substantive editing of the tape transcripts, the use of those same inaccurate transcripts, and the admittance of state election records without redaction, clearly hurdles harmless error, shows prejudice to the defendants' right to a fair trial, and necessitates a reversal of the convictions.

The next step for the government could be asking for a rehearing or reconsideration, though based on the lengthy list of errors, such a move seems unlikely to be successful. Retrials or plea bargains could be forthcoming, though according to the Lexington Herald-Leader, any retrial would be complicated by the lead FBI investigator's death from a heart attack in 2011.

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