Lexington attorney says prosecutor, cop misled grand jury. They claim a ‘misunderstanding’

A Lexington police officer and the top prosecutor misled a grand jury to secure a trumped-up indictment for sex crimes against their client, two defense attorneys allege in a new court filing.

Now, they’re asking a judge to throw out the charges.

Jerry Wright and Noel Caldwell, attorneys for William Henry Clay, filed a motion April 22 in Fayette Circuit Court to dismiss criminal charges of first-degree sexual abuse, third-degree rape, and first-degree sexual abuse against their client.

Wright says Fayette County Commonwealth’s Attorney Kimberly Baird and Lexington Police Department Detective Paul Hogan committed prosecutorial misconduct when they allegedly presented “patently false” and “perjured statements” made to a grand jury by saying Clay penetrated the child victim, which constituted the rape charge.

“The commonwealth knew that the testimony of Det. Hogan was false and the Fayette County Grand Jury would not have issued the indictment against the defendant but for the perjured testimony,” Wright wrote in his motion.

Baird denies those claims, saying the accusation is “disingenuous” and the situation amounts to a “misunderstanding.”

She asserts her office immediately attempted to fix the situation by filing amended charges. When Clay wasn’t offered a plea deal, Wright filed the motion to dismiss, she said.

Wright denied this claim when speaking to the Herald-Leader, and said he was looking forward to a resolution that was amenable to everyone.

Unlike a trial jury, grand jurors do not decide a defendant’s guilt. Their responsibilities are to determine what charges — if any — a defendant will face in circuit court or trial based on evidence presented to them by prosecutors. Jurors can either bolster or reduce charges brought forth by the prosecutors.

Grand jury proceedings are done in secret, and consist of 12 citizens selected to serve at random. During the proceedings, evidence is presented by a commonwealth’s attorney who can call witnesses like law enforcement officials. Defense attorneys do not present to grand juries, and an indictment requires only nine of the 12 jurors to agree there is sufficient proof.

Wright wrote, in theory, a trial provides a defendant with a full opportunity to contest charges against him or her. In practice, the issuance of an indictment oftentimes has a devastating personal and professional impact that a trial acquittal can never undo.

Wright said Clay has maintained his innocence all along.

“We’ve got no other choice (than to file the motion),” Wright said Thursday. “We have an ethical obligation to our client, and when it appears something wrong has happened with testimony given at the grand jury, how is that going to affect the overall case? We have an obligation to try and protect him.”

What happened in the grand jury testimony

Hogan testified at the September 2021 grand jury hearing that during a forensic interview with the child victim, the victim told investigators Clay digitally penetrated her “more than once,” after asking the victim to change clothes in front of him, according to court transcripts.

The act of penetration is the statutory requirement necessary to secure a rape charge.

The defense reviewed the victim’s forensic interview, and no accusations were made by the victim regarding Clay digitally penetrating the victim.

The forensic interview was done nine months prior to the grand jury proceedings and all the while in the prosecution’s possession, according to court documents.

Last month, Baird responded to the motion to dismiss the indictment, saying the defense’s claims against her and the detective were “disingenuous” and without merit.

Prosecutors and Hogan believed from the victim’s interview with a therapist that Clay had penetrated the victim, as opposed to touching inside the victim’s pants.

Ahead of the initial March 2024 trial date, the commonwealth met with the victim on February 29 to review the facts of the case. That’s when they became aware of the “misunderstanding” of statements made during the forensic interview that Hogan referenced during his grand jury testimony, Baird recalled.

Prosecution wants to amend indictment

Baird wrote that her office attempted to remedy the situation “immediately” by amending the charges in a motion filed March 1, 2024. They suggested the rape charge be amended to first-degree sexual assault.

Baird said her office informed Clay, and met with Wright to discuss the confusion.

Wright asked for a continuance for the approaching trial date, but then began to discuss alternative plea offers and requested a misdemeanor in exchange for not filing the motion to dismiss, Baird said.

“When the Commonwealth indicated it would not do so, the defendant then filed this motion,” Baird wrote.

Baird says the prosecution and detective did not commit misconduct because they didn’t “intentionally or knowingly” present false testimony to the grand jury.

She said defense counsel would have to prove Hogan did not believe his testimony, that the commonwealth knew as much and still elicited the testimony, according to statute.

“It is disingenuous for the defendant to say the commonwealth engaged in misconduct and flagrant abuse of the grand jury process by eliciting false and perjured testimony to ‘elevate charges,’ then remedy the situation immediately upon becoming aware of it, disclosing it to the defendant before trial rather than making a motion during trial to amend the indictment to conform with the trial testimony…” she wrote.

Baird added, “If the intent was to perpetrate some fraud upon the court, then the commonwealth would proceed with the original charges and remain silent as to the victim’s statements.”

The Herald-Leader could not reach Baird for comment.

Fayette Circuit Judge Lucy VanMeter will preside over an evidentiary hearing August 15.