The Kentucky Supreme Court released an order Friday requiring Christian County Commonwealth’s Attorney Rick Boling to show cause why he should not be temporarily suspended from practicing law.
This news comes just after and partially in response to the recent dismissal of a manslaughter indictment due to Boling’s prosecutorial misconduct during the grand jury proceeding against the defendant.
However, the Supreme Court states that its decision to issue the order is due to three total instances of misconduct.
“Professional misconduct on the part of Christian County Commonwealth’s Attorney Richard Boling has been the subject of two separate motions before this Court for proposed negotiated disciplinary sanctions,” the order said.
“This Court rejected both proposed sanctions as inadequate. More than a year has passed since those matters were remanded for further disciplinary proceedings and now the Court has received notice that a Christian Circuit Court Judge recently dismissed an indictment because of Boling’s prosecutorial misconduct in the course of grand jury proceedings.
“In light of the foregoing, we hereby order Respondent Boling to show cause why he should not be temporarily suspended from the practice of law pursuant to Supreme Court Rule 3.165.”
The order then began to detail the timeline of all three reports of misconduct and disciplinary proceedings that followed.
The Kentucky Bar Association’s Inquiry Commission first issued a complaint against Boling on Feb. 28, 2020, as a response to the letter Boling wrote using his Commonwealth’s Attorney letterhead to former Gov. Matt Bevin requesting a pardon or commutation of Dayton Jones.
Jones and three others pleaded guilty to the Oct. 12, 2014, sexual assault of a 15-year-old who was sodomized with a sex toy during a party. The boy suffered severe internal injuries as a result of the attack. It was also captured on video and shared on social media.
Boling’s letter eventually led to the commutation of Jones’ sentence by Bevin.
According to the order, that first disciplinary action was presented to the Supreme Court on a motion for consensual discipline in September 2020, but the Court quickly rejected the negotiated sanction on Oct. 29, 2020, finding the proposed 60-day suspension from the Bar Association, probated for one year, “woefully inadequate.”
“We deemed Boling’s conduct particularly egregious because it occurred in his role as a Commonwealth’s Attorney and noted that his letter undoubtedly conveyed to the Governor that the current Commonwealth’s Attorney believed Jones was deserving of pardon,” the Court said in the order.
“The circumstances leading up to Boling’s letter were particularly concerning. We remanded the matter for further proceedings.”
Roughly half a year later, on May 4, 2020, the Inquiry Commission issued a second complaint against Boling, this time specifically for prosecutorial misconduct in the trial against Karen Brafman, who as a result of Boling’s misconduct was convicted of two counts of arson and six counts of attempted murder.
On Dec. 22, 2020, the Supreme Court reversed Brafman’s conviction and remanded the case for a new trial due to Boling’s misconduct.
During that trial, Boling was personally aware of evidence of Brafman’s intoxication, evidence that was credible and important to the case, but argued against a voluntary intoxication jury instruction on the grounds that no such evidence existed.
Courtroom footage recorded in the Christian County Justice Center just after the investigator in the case had left the stand shows that Boling intentionally avoided asking about Brafman’s intoxication although he knew about it.
The Supreme Court found that Boling’s conduct rendered the trial “fundamentally unfair.”
On Feb. 5, 2021, Boling filed a second motion for consensual discipline, this time proposing a 120-day suspension, with 60 days to serve and 60 days probated for two years, as a resolution of both pending disciplinary cases.
On April 29, 2021, the Court again rejected the proposed discipline, “offering a lengthy exposition of Boling’s misconduct and the inadequacy of the proposed sanction.”
“We remanded the cases to the KBA for further disciplinary proceedings and urged the parties to recognize the serious and egregious nature of Boling’s misconduct in considering the appropriate discipline,” the order said.
The Supreme Court in the order explained that in the event that Boling and the Bar Association failed to reach a different and more appropriate proposal of discipline within 90 days of that second complaint, “the matter ‘shall’ proceed as a contested matter in accordance with the Supreme Court Rules.”
Last year, the Supreme Court then allowed a 90-day extension in good faith that both parties were continuing to negotiate.
When that extended time expired without any further consensual discipline motion, the Court then entered an Oct. 29, 2021 order directing both parties to file a status report and if no negotiated sanction could be reached, the Office of Bar Counsel was required to set a hearing date before the Trial Commissioner and was to be scheduled no later than 30 days after the Oct. 29 order.
The status report of Nov. 2, 2021, indicated that Boling was given an extension to respond to formal charges on the Brafman matter until Sept. 15, 2021, and that the parties would resume negotiations following his answer.
The Supreme Court stated that if an agreement still could not be reached, a trial commissioner would be appointed and the case would continue through the disciplinary process.
“Despite this Court’s direction that the matter proceed expeditiously, no new agreement has been presented and a hearing before the trial commissioner is apparently not scheduled until August 2022,” the Court wrote in the order.
However, the dismissal of the indictment against Seth Henderson, who was charged with second-degree manslaughter in the overdose death of Corbin Bowling in January 2021, due to Boling’s prosecutorial misconduct prompted the Supreme Court to move on disciplining Boling instead of waiting on the August hearing between him and the KBA.
In the case against Henderson, Christian Circuit Judge Andrew Self dismissed the indictment against Henderson due to Boling “knowingly or intentionally presented false or misleading information to the grand jury” during the indictment hearing.
The false or misleading information regarded text messages that were used during the Grand Jury presentation that could not be directly tied to being Henderson’s phone, as the text messages used did not match the phone in which Henderson gave detectives consent to search during the investigation.
There was also an issue concerning the dates of the texts used at the Grand Jury hearing. Bowling reportedly passed from her overdose on Jan. 9, however, the detectives admitted that the text messages that were presented to the grand jury were dated for Jan. 12.
“While the Court trusts that the Inquiry Commission will promptly review this latest incident soon, we find that a circuit judge’s dismissal of an indictment for prosecutorial misconduct easily exceeds the probable cause standard for initiation of lawyer disciplinary charges,” the Supreme Court wrote.
“In short, under these circumstances, with two prior instances of serious misconduct already known to the Court but still unresolved, we need not wait for action by the Inquiry Commission or Bar Counsel to act for the protection of the public.
“Based on (1) the seriousness of the pending charges with which this Court is already familiar, (2) the parties’ failure to act in a timely fashion on remand by either negotiating an agreed sanction for those charges or by presenting them in the ordinary disciplinary process to a trial commissioner for prompt hearing and disposition before the Kentucky Bar Association; and (3) the Court’s awareness of this apparent third instance of professional misconduct, again in the context of Respondent Boling’s role as an elected Commonwealth’s Attorney, the Court deems this Show cause order necessary so that it may proceed to consideration of Respondent Richard Boling’s temporary suspension from the practice of law without any further delay.”
The New Era reached out to Boling for comment on the issue, however, he declined.