Clerk’s embezzlement indictment thrown out
Published 7:18 pm Thursday, January 6, 2011
An indictment against a local electedofficial was tossed out by a judge Thursday because the document’swording failed to meet the court’s muster.
Senior status Judge William Colemanquashed the embezzlement indictment against Lincoln County CircuitClerk Terry Lynn Watkins because the definitions of eight counts asworded against her were too ambiguous to proceed to trial. Thedefense cited previous court rulings that killed similarindictments, arguing the vagueness of the wording did not specifywho the missing money belonged to and did not allow the defendantto prepare an adequate defense.
Judge Coleman agreed, declaring theindictment did not make it possible for him to determine who themoney belonged to or if the grand jury agreed on the charges.
“For this reason, the failure ofthe grand jury requires that all eight counts be held to be fataland the motion to quash be sustained,” he ruled.
The quashing of the indictment means there are no charges againstWatkins and the prosecution has been set back to square one. Thecase is still alive because no double jeopardy was attached to thedefeated indictment, said District Attorney Dee Bates.
Bates said he would resubmit theevidence, obtained through an investigation by the state auditor’soffice, to the 2011 grand jury next month. If the grand jurydecides to indict Watkins again, the new document will be presentedwith clean syntax, he said.
“We’ll go back to the grand jurythe first of February and clear up the determination of ownership,”Bates said.
The quashed indictment chargedWatkins with embezzling more than $131,000 paid into the countybetween 2004 and 2006. The office takes in and redistributes largesums of money among local agencies and to victims’compensation.
During Thursday’s hearing, Watkins’attorney, Matt Kitchens, argued the first two counts of theindictment did not specify to whom the missing money belonged,making the indictment insufficient to charge her with embezzlement.The indictment alleges Watkins did not turn over “property of valueto Lincoln County” totaling $72,850 on April 15, 2005 and April 15,2006.
“There is no allegation anywhere inthe indictment these funds belonged to Lincoln County,” he said.”That is an essential element for a case of embezzlement.”
Kitchens went on to argue againstcounts three through eight along similar lines, saying theindictment’s use of the word “or” instead of “and” did not meetspecificity requirements.
Those five counts allege Watkinsembezzled “or” did not turn over a further $58,298 by legaldeadlines from 2004 to 2006. Kitchens argued the use of the word”or” could imply the grand jury did not reach a unanimous vote tocharge Watkins specifically with embezzlement, and that proceedingwith the word “or” in place would allow the district attorney tounlawfully decide how to prosecute the counts in theindictment.
“It’s so vague … she can’tascertain with any degree of certainty what she’s called todefend,” he said. “A person can’t be charged with ‘or.'”
Bates countered by arguing theindictment’s phrase describing “property of value to LincolnCounty” was sufficient to prove the missing money belonged to thepeople of the county.
He consented that the indictment’s wording was poor but argued thestate should be allowed to strike the language in question andproceed with the trial because the indictment shows evidence ofembezzlement regardless.
“Based on the indictment, there aredates alleged on each charge we are discussing here. That state candescribe what happened on May 4, 2004, a date when money wasconverted from one account to another,” Bates said.
Bates countered Kitchens’ proposalthat the grand jury was indecisive, saying no dates would bealleged in the indictment if the jurors were unsure. Changing thelanguage of the document would not alter any plans of the defense,he argued.
“That’s the evidence that showsmoney was taken out of that account and there’s a deposit slip,” hesaid. “I can presume what the grand jury intended, and I can dothat with the dates that are alleged.”
Kitchens reiterated his openingargument after Bates concluded, and the district attorney did notrespond. Coleman recessed the court for about 30 minutes while hereviewed Westmoreland v. State (1971), which established that anindictment’s main purpose is to alert the defendant of chargesagainst him. Kitchens’ defense relied heavily on the case.