A best-selling author, the nation’s leading family counselor, a top Christian talk-show host and at least two members of Congress – not every con serving 20 years in federal prison has a team like that pleading the president of the United States for executive clemency.
But that’s the vanguard of a political-legal effort to spring the former owner of a precious-metals company and publisher of Conservative Digest convicted in 1994 on mail fraud and money laundering charges in what some say was a case of prosecutorial misconduct.
Best-selling author Tim LaHaye, James Dobson of Focus on the Family,
national radio talk-show host Marlin Maddoux, as well as Republican Reps. John Duncan of Tennesse and Mark Souder of Indiana are seeking the release of William R. Kennedy from prison.
They say he was the victim of a politically motivated government
witch-hunt, that he has served more than enough time given his suspect
conviction, that he was denied real justice and that they and others
will help rehabilitate Kennedy upon his release.
“We believe that sentence for Mr. Kennedy, a first time offender (who has no record of violence) is exceptionally long for the crimes of which he was convicted, and particularly when compared to others convicted of financial offenses,” supporters wrote in a letter to Bush. “We believe that the principles of restorative justice would be better served by Mr. Kennedy’s release from prison.
“Upon release, Mr. Kennedy’s friends are committed to support his efforts for employment and thus enable him to fulfill his intention to make restitution to his victims,” said the letter.
Supporters told Bush Kennedy has been a “model prisoner” during his nine-year incarceration, using his time “to assist other prisoners by leading Bible studies and worship services.” Also, they said, Kennedy’s efforts “will assure his ability to re-assimilate into society and become both a productive private citizen and a credit to his community.”
Also, supporters told the president of “sworn evidence” that “has substantiated serious wrongdoing on the part of government lawyers who prosecuted Bill’s case and has impacted Bill’s ability to prove his innocence at trial.”
“This factor,” the letter said, “should also … be considered” in the president’s decision to grant Kennedy clemency.
Prosecutorial misconduct?
In a summary briefing provided to WorldNetDaily, Kennedy’s legal team – led by attorney Craig Parshall of Fredricksburg, Va. – laid out the reasons why they want the president to grant him executive clemency.
Among other assertions, attorney Parshall claims to have compelling and “overwhelming sworn evidence” of prosecutorial misconduct in their client’s original criminal case. He says the prosecutor, for example, deliberately “invaded” Kennedy’s legal team by “interviewing, and extracting privileged information and documents, including attorney-client letters, from a former defense law clerk.” That makes the prosecutor’s actions “particularly egregious given the fact that he had been explicitly warned against violating attorney-client privilege,” says Parshall, in the summary of Kennedy’s case provided to WorldNetDaily.
Also, Kennedy’s attorney asserts that the prosecutor “falsely covered up his wrongful conduct” in a conversation with Kennedy’s court-appointed attorney prior to his trial. Parshall also asserts the assistant U.S. attorney, FBI and Internal Revenue Service agents who conducted witness interviews “created ‘302’ reports with critical omissions – covering up the [prosecutorial] misconduct.”
Further, he claims some of the government’s 302 reports contain false information about the alleged protection of attorney-client privilege in the government’s investigation of Kennedy’s case. Other 302 reports are simply missing or were never prepared that relate to covert meetings with the former defense law clerk, Parshall says.
During Kennedy’s trial, some of the privileged information allegedly provided by the law clerk surfaced and were even included in the prosecutor’s closing arguments, the summary said.
“The privileged information, gleaned illegally from the defense law clerk … included disclosure of defense tactics, strategy, legal research, identity of witnesses and defense evaluation of potential prosecution evidence and witnesses,” said the summary.
Parshall says “to this day” the government still has never presented sworn evidence denying, or attempting to explain, the claimed prosecutorial misconduct.
“Even worse,” his summary continued, “the government covered up evidence of Mr. Kennedy’s innocence and hid it from his defense lawyer. … The prosecution received written notes from the law clerk listing the evidence of Mr. Kennedy’s innocence, and the prosecution caused the notes to disappear.”
Excessive time
Parshall also says his sentence was excessive given the nature of his conviction. Kennedy’s 20-year sentence “was not based on the alleged underlying core offense of mail fraud,” but rather, the summary says, “on a hyper-technical violation of the money-laundering statute, which resulted in a four-times more severe sentence.”
Kennedy’s lengthy trial revolved almost exclusively around his charge of mail fraud, which carries a maximum penalty of five years in prison. But through a “procedural trick,” the former publisher’s lawyer says the prosecution was able to apply sentencing guidelines for “money laundering” instead, “by reason of a mere technical ‘receipt and deposit’ of investors’ money into the bank accounts of Mr. Kennedy’s company.”
Also, said Parshall’s summary, there was no evidence of “traditional criminal ‘laundering’ of money,” nor was there evidence of “drug racketeering nor involvement of organized crime” – two preconditions that were “criminal spheres of concern by Congress” when lawmakers passed money-laundering statutes.
Was this obvious to anyone besides the Kennedy team?
“In recent testimony before a House subcommittee,” said the summary, “a criminal-law expert cited Mr. Kennedy’s case as an example of ‘conflat[ing] the underlying offense of mail fraud with the money-laundering offense,’ resulting in ‘incremental punishment … with no incremental conduct. …'”
Further, a number of U.S. courts of appeal as well as the U.S. Sentencing Commission “have recognized the inequitable and ‘Draconian’ sentences that can be imposed” under money-laundering statutes on businessmen and women “who merely ‘receive and deposit’ money into their companies’ bank accounts, but who are found to have violated other predicate offenses – e.g., mail fraud,” said the summary.
The former precious-metal dealer claims he has a “formidable case” of innocence.
For instance, Parshall says he has “substantial evidence” suggesting Kennedy’s company could not fill precious-metal orders from customers who had paid some or all of the purchase price, but not because he was involved in a “scheme” to defraud them. Rather, he says Kennedy could not fill orders “because of poor business management that resulted in a Chapter 11 bankruptcy.”
Furthermore, the summary says the government’s case against Kennedy was entirely circumstantial, “and was built on two former employees of Mr. Kennedy’s company who were indicted,” then testified against their former boss in a plea agreement.
One of the government’s witnesses, an insider on the company’s Operations Committee who dealt with customer complaints and company finances, even told FBI investigators there was no fraud involved, that customers were not getting orders due to “mismanagement.” However, after being indicted, the employee accepted a plea bargain and changed his testimony “radically.”
The other key government witness who took a plea bargain admitted to having lied to the FBI consistently over the course of several interviews (the trial court acknowledged this witness’ credibility problem during the trial). Numerous other company employees who were tied to Kennedy were also indicted, but all of them were acquitted.
Finally, Kennedy had won from federal bankruptcy court an approved plan to repay his debtor/investors and was on his way to doing that when he was indicted. Prosecutors announced his indictment in a press conference covered by national media; his Chapter 11 repayment plan was hopelessly scrapped afterward, said Parshall’s summary.
No redemption
Despite what it feels are obvious discrepancies in his case, Kennedy’s attorney says perhaps the worst part of his client’s ordeal is the fact that the courts have not given him the opportunity for a new, fairer trial.
“The Court of Appeals for the 10th Circuit refused to consider, on the merits, new evidence in the form of a sworn affidavit from the law clerk, who admitted the improper collaboration with the prosecutor,” said the summary.
That same court, said the summary, held that “even proof that the prosecutor had lied to defense counsel about his unethical and illegal invasion of Kennedy’s attorney-client privilege … was not sufficient reason to entertain the sworn affidavit that proved the attorney-client breach and its taint on the trial.”
Kennedy’s legal eagle is looking for an executive pardon because he says under habeas corpus rules passed by Congress in 1994, criminal defendants like Kennedy “will never be entitled to even receive a court hearing regarding” claims of innocence or “gross prosecution misconduct” because they must first prove they are innocent offering “‘clear and convincing proof,’ i.e., only DNA proof of innocence in violent crimes will qualify,” the summary stated.
In cases of corporate fraud, “due to their complexity, and the ease with which business citizens can be deemed to have had fraudulent ‘intent,'” said Parshall’s summary, Kennedy “will never be able to meet this Olympian threshold erected by Congress.”
