CHARLESTON – Former state Supreme Court Justice Menis Ketchum’s attorney says his client only should be placed on probation or fined on a federal wire fraud charge.
Federal prosecutors, however, say Ketchum should serve six to 12 months in jail in addition to being fined for using a state vehicle and state gas card for personal golf trips to Virginia.
In pre-sentencing court filings, both sides presented their reasons for recommending those sentences.
The memorandum filed by Charleston attorney James Cagle, who is representing Ketchum, highlights reasons Ketchum, who just turned 76, should not face jail time.
Those factors include no criminal history, sincere remorse, community and professional service, efforts to fix tax issues prior to knowledge of a federal investigation and reimbursement of money for his personal use of a state car before he knew of a federal investigation.
“As a result of his conviction, (Ketchum) has lost his job, lost his state pension, lost his law license and lost his good reputation,” the memorandum states. “His sentence should be a fine only or probation only” reflecting “the need for ‘just punishment’ and ‘adequate deterrence.’”
The memorandum written by U.S. Attorney Mike Stuart details information about the incident that led to the guilty plea.
“To preserve the government’s position in this case, the United States notes that defendant Ketchum’s crime – using a state-owned vehicle and its fuel card for his personal gain and benefit, under the false pretense that he was acting for official purposes – is the type of crime that any government employee might conceivably commit,” the prosecutor’s memo states. “Defendant Ketchum’s abuse of his position as a justice is a separate consideration.
“As a justice of the Supreme Court, there were no employees higher than he was in the organization. He possessed nearly limitless discretion in carrying out his duties and answered to no single individual. He was given a Supreme Court vehicle for commuting purposes because of his position as a justice. His autonomy and discretion allowed him to go for years before the crime was uncovered.”
But, the government says Ketchum has accepted responsibility and shown remorse.
“He is in his seventies and is not a violent person,” Stuart wrote. “He does not represent a danger to the community or a threat to repeat his fraudulent conduct. He appears to have learned a harsh lesson.
“Defendant Ketchum, however, stands convicted of a serious crime, notwithstanding the small dollar amount involved in the offense. The offense is significant because of defendant Ketchum’s position as a sitting justice on the highest court in the State of West Virginia. It was his duty to apply and follow the law. The fraudulent conduct thus represents a betrayal of the trust placed in him by the public when it elected him to serve as a justice, and the relatively small amount of loss to the state provides no excuse.”
Ketchum has agreed to pay restitution to the state between $400 and $700, and the federal government requests $700.
“Corruption is a cancer that erodes the public’s confidence in the government and undermines the rule of law,” Stuart wrote in his conclusion.
Ketchum’s sentencing currently is scheduled for Feb. 27 before U.S. District Judge John Copenhaver. It was scheduled for Jan. 30, but was moved. However, Cagle has filed a motion seeking another date because Cagle’s wife having a surgery scheduled Feb. 27. Cagle’s office says the hearing will be rescheduled, but the new date has yet to be determined.
Ketchum pleaded guilty in August to one count of wire fraud. He admitted to using a state-owned vehicle and a state-issued gas card for personal use for golf trips to Virginia.
Ketchum resigned from the state Supreme Court in July.
On Feb. 13, Copenhaver sentenced former state Supreme Court Justice Allen Loughry to two years in federal prison. He also was ordered to pay fines and restitution in the amount of $12,273. He also will serve three years of supervised probation. He is supposed to self-report to prison by April 5.
In October, a jury found Loughry guilty of 11 of the 23 charges he faced. He would found guilty of seven counts of wire fraud, one count of mail fraud, two for making false statements to federal agents and one count of witness tampering. Copenhaver later dropped the witness tampering conviction but said the federal government could decide if it wanted to retry Loughry on that charge.
The mail fraud count related to Loughry seeking reimbursement for a trip to a conference despite using a state vehicle and a state-issued gasoline purchasing card.
The wire fraud counts were about Loughry using a state vehicle and state-issued gasoline purchasing card for personal travel. Some of those trips were for events where he signed copies of his book “Don’t Buy Another Vote, I Won’t Pay For A Landslide,” Loughry’s book about West Virginia’s history of political corruption.
Loughry also faces sanctions from the state Judicial Hearing Board. Its hearing on the matter is scheduled for Feb. 20. But during the Feb. 13 sentencing, Carr said Loughry already has signed an agreement to give up his law license and never run for public office again.
In addition to the federal charges, the state Judicial Investigation Commission charges also focus on Loughry’s violations of the Code of Judicial Conduct by making “false statements with the deliberate attempt to deceive, engaged in sophism and gave disinformation with the intent to harm another person.”
The JIC says Loughry denied that he had anything to do with renovations to his state Capitol office that included a $32,000 couch, $1,700 for throw pillows and a $7,500 wooden inlaid medallion in his office floor. The JIC also says Loughry violated the Code of Judicial Conduct “when he kept secret from other justices” a December 2017 federal subpoena served on the court.
Loughry “personally selected the couch,” the JIC statement of charges says. “He also selected the blue suede fabric covering for the couch and the fabric covering the throw pillows.”
Loughry was removed as Chief Justice last February, and he was suspended in June shortly after the federal criminal charges were announced. He resigned in November after his conviction. Loughry and three other then-Justices were impeached in August. Only current Chief Justice Beth Walker faced an impeachment trial. She was cleared in October. The impeachment efforts then were found to be a violation of the separation of powers doctrine.