The county clerk’s attorney said the prosecutor is mischaracterizing its defense in a tampering with public records case set for trial later this month.
Defense Attorney Frank Shaw filed a response Thursday to Special Prosecutor Brian Clary’s request that seeks striking the defense’s ability to question past county clerks’ actions and practices at trial.
Clary has requested a hearing to determine whether the defense could question other county clerks’ actions during trial, noting he "anticipates that [the] defendant will present evidence of the past custom and practice of the Faulkner County Clerk as a defense to committing the offense of tampering with a public record" and that the "defendant’s defense is merely an explanation of why she committed the offense and is not relevant as to her guilt or innocence."
Shaw said Clary’s statement "mischaracterized" his intent to question past county clerks’ actions and that "no one has even checked [the county clerk’s actions] over the last 30 years."
"It’s not our defense," he said. "It’s historical in nature as to how those events played out."
County Clerk Margaret Darter, 52, was charged with tampering with public records on Oct. 27 and has pleaded not guilty to the felony charge.
Darter’s charge stems from a June request by Faulkner County Prosecuting Attorney Cody Hiland to Arkansas State Police to conduct a criminal investigation into the date elected officials filed their Statements of Financial Interest (SFI) versus the date stamp posted on the documents, according to an affidavit.
With the general election drawing nearer, Clary has said it was important Darter’s trial be held before Nov. 8. Her jury trial is set for Oct. 18-19.
State law dictates that any elected official convicted of a felony be removed from office. Misdemeanor charges involving malfeasance, misfeasance or nonfeasance also require removal from office.
Incumbent Darter won the Republican nomination for county clerk and will face Democrat Penny McClung in the general election Nov. 8.
If she is found guilty, votes cast for Darter will not be counted.
Shaw told the Log Cabin Democrat the defense has proposed an offer to the state. While he would not reveal all the details regarding the proposal, he said it would require Darter to resign from office in exchange of charges being dismissed.
County Attorney David Hogue said Darter’s ability to run for office would not be quashed if prosecutors moved to drop the charge against her.
"If she resigns based on a plea deal where she resigns in exchange of them dropping the charges [and] there is no conviction, then that would not affect her eligibility or ability to take office," he said.
Shaw also said he questioned Clary’s decision to only charge Darter in this incident, noting justices of the peace must file their SFI forms by Jan. 31.
"It’s not the county clerk’s job to file these. She was responding to a request," Shaw said, noting the previous county clerk would remind justices of the peace to fill the forms out at their January meeting.
Shaw said he was concerned that the statute of limitations to charge any of the justices of the peace had expired.
"Whoever initiated the investigation [against Darter] was probably guilty on their own," he said.
Hogue confirmed the justices of the peace could be charged with Class B misdemeanors for filing late. However, he noted the law states misdemeanor charges in this situation would apply to an elected official who neglected turning an SFI form by deadline to purposely hide information.
"There’s a big difference between negligently doing this and purposefully doing this," he said.
Hogue said the prosecutor did not see any red flags or evidence arising suspicion that the justices of the peace purposefully turned in their paperwork late.
Shaw also filed a motion asking for additional discovery he said he believes was not provided to the defense.
Shaw is asking prosecutors to identify who tipped off Hiland to investigate Darter’s actions as well as for information regarding a redacted email document.
"Specifically, an unknown individual has redacted the email addresses of several of the Faulkner County Quorum Court members and appears to have redacted not only the email address of an unknown individual but also that individual’s name," Shaw stated in his motion.
The defense has not yet filed written responses to three motions in limine that were filed Thursday.
Clary is asking Circuit Judge Charles "Ed" Clawson Jr. to rule against allowing the defense to "inform the jury that she would be removed from office and prohibited from holding public office in the future if she is convicted."
Clary is also asking not to allow Shaw to accuse prosecutors of selective prosecution or "encourage or suggest jury nullification," meaning "questions of law arising during trial shall be decided by the court and that the jury shall be bound to take the decisions of the court on points of law."
A motion hearing in Darter’s case is scheduled for 1 p.m. Oct. 6.
(Staff writer Marisa Hicks can be reached by email at firstname.lastname@example.org or by phone at 505-1277. To comment on this and other stories in the Log Cabin, log on to www.thecabin.net. Send us your news at www.thecabin.net/submit)