Lexington lawyer says prosecutor, cop misled grand jury. A judge disagreed.

A Fayette Circuit Court judge has ruled that a Lexington police officer and the top prosecutor did not intentionally mislead a grand jury to secure more serious charges against a defendant accused of committing felony sex crimes.

Jerry Wright and Noel Caldwell, attorneys for 71-year-old William Henry Clay, filed a motion April 22 in Fayette Circuit Court to throw out charges of first-degree sexual abuse, third-degree rape, and first-degree sexual abuse against their client.

They alleged the detective and prosecutor lied about evidence to get a trumped-up charge against their client, who is accused of sexually assaulting a child.

Clay’s lawyers argued that Fayette County Commonwealth’s Attorney Kimberly Baird and Lexington Police Department Detective Paul Hogan committed prosecutorial misconduct by presenting “patently false” and “perjured statements” to a grand jury that Clay penetrated the victim, justifying the rape charge.

But Fayette Circuit Judge Lucy VanMeter ruled Monday that the police detective was “mistaken” in his grand jury testimony, and he did not intentionally present false statements.

“The Court finds absolutely no indication that Sgt. Hogan knowingly presented false testimony or that he intended to deceive the grand jury,” VanMeter wrote.

What happened with the grand jury testimony?

Hogan testified at a grand jury hearing in September 2021 that during a forensic interview with the child victim, the victim told investigators Clay 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.

But the defense reviewed the victim’s forensic interview, and the child did not allege that there was penetration during the abuse. They planned to use the discrepancy at trial, Wright said.

Baird, the prosecutor, argued that the defense’s claims were “disingenuous” and without merit.

Ahead of the initial March 2024 trial date, the prosecutors met with the victim 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.

She said 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.

Defense intended to use the ‘perjured’ testimony to discredit witness

Wright, the defense lawyer, said he “offered to take a misdemeanor charge” so his firm would not be “accusing the officer of perjury.”

Wright admitted he was not going to accept a deal that included a felony charge for his client’s best interest. Clay is a persistent felony offender, and a new felony charge would bolster his consequences.

For the indictment to be dismissed based on their allegations, Wright and Caldwell had to prove prosecutors lied knowingly or intentionally. Wright argued they did, because the testimony was based on the “interpretation” of what the victim said during her forensic interview.

“I don’t think the rule of law wants people to be prosecuted based on an interpretation of the evidence,” Wright said Thursday during a hearing.

Baird replied that after 28 years with the Fayette Commonwealth’s Attorney’s Office, she was “not going to stake her job and reputation on this defendant.”

Wright and Caldwell admitted they knew about the false testimony long before Baird’s office filed the motion to amend. They intended to use the information as “trial strategy” to try and discredit Hogan’s testimony if the case were to go to trial.

Ultimately, the judge sided with prosecutors.

“Sgt. Hogan simply testified to the truth as he believed it to be,” VanMeter ruled. “Under these circumstances, the Court finds Sgt. Hogan’s testimony was not ‘perjured’ because he actually believed his statements to be true.”