CHARLESTON – Federal prosecutors paint former state Supreme Court Justice Allen Loughry as “vindictive and vengeful,” “not credible,” retaliatory and one who “would not hesitate to flex his power and authority to get what he wanted.”
In a response to Loughry’s second motion for a new federal trial, prosecutors say Loughry doesn’t provide evidence to warrant a new trial. His first motion for a new trial remains sealed.
Loughry was convicted Oct. 12 on 11 federal counts of mail fraud, wire fraud, witness tampering and lying to federal agents. His Nov. 6 motion seeks acquittal or a new trial on nine of those counts, including seven for wire fraud, one for mail fraud and one for witness tampering.
Earlier this month, he resigned from the state Supreme Court.
In his second motion, Loughry had argued the evidence was insufficient, saying 16 seconds of a 22-minute audio recording made by Supreme Court Director of Administrative Services Kim Ellis during a meeting with Loughry and at lest four others was all that was used to form the claim.
“This brief exchange is the sole basis for the government’s tampering charge and it is woefully inadequate,” the motion states.
In the federal response, prosecutors said Ellis was credible and Loughry was not.
“From all of the foregoing evidence, including the fraud evidence, the jury could have reasonably concluded not only that Kim Ellis was credible, but that defendant Loughry was not credible, that he was vindictive and vengeful when crossed, and that he would not hesitate to flex his power and authority to get what he wanted,” prosecutors wrote.
After that meeting she had recorded, prosecutors say Ellis was moved from her office to
another office between the offices of the two administrative counsel who had attended the meeting and sat on either side of Loughry.
They also say the jury heard testimony from Loughry, Ellis and others, including former Justice Brent Benjamin.
“The jury evaluated their words, demeanor, and ultimately, their credibility, and weighed their credibility against the credibility of the defendant, who, in his testimony, went so far as to accuse Benjamin of lying on the witness stand,” the response states. “That accusation fit a pattern – that defendant Loughry would retaliate against those who questioned or criticized him by accusing them of engaging in possible criminal activity.”
In fact, prosecutors say that type of action was common for Loughry.
“He did that very thing in 2016, by calling the United States Attorney’s Office about spending by Robin Davis, who had questioned defendant Loughry’s travel,” they wrote. “He made another accusation in October 2017 by calling United States Attorney Casto about the outrageous spending at the Supreme Court and blaming Steve Canterbury, after it became apparent that Mr. Canterbury had discussed the spending with the news media.
“And he did it again in February 2018, when he called Special Agent Lafferty to report possible wrongdoing by Justice Workman in connection with the preparation of a will.”
Prosecutors also say jurors were able to form their own opinions about Loughry during his testimony.
“Not only did the jurors hear his words, but they also observed his demeanor, his body language, and his manner of testifying, and they weighed his testimony against the other evidence,” they wrote. “Quite apparently, the jury did not believe him.”
On the one mail fraud conviction, prosecutors say testimony showed that a check Loughry received for $488.60 from the Pound Institute for expenses related to a speech there in 2014 was mailed to him.
On the seven wire fraud convictions, prosecutors also said evidence showed Loughry used false or fraudulent pretenses and representations concerning his use of state vehicles for personal use.
Last month, the state Judicial Hearing Board scheduled a hearing for Loughry for Jan. 14 after lifting a stay. The board had issued the stay pending Loughry’s federal trial. On the same day, the state Judicial Investigation Commission amended its formal charges against Loughry to include the federal convictions.
The JIC filed its statement of charges against Loughry in early June. That statement of charges led to Loughry being suspended by the state Supreme Court based on those 32 charges.
On Nov. 9, Loughry submitted his resignation letter to Gov. Jim Justice, effective the end of business on Nov. 12. A second special session had been called for Nov. 13 to deal with Loughry's possible impeachment, focusing on the federal charges. But it was cancelled upon Loughry's resignation.
If Loughry’s motions seeking a new trial are unsuccessful, his sentencing is scheduled for Jan. 16, just two days after his hearing before the state Judicial Hearing Board.