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Attorney for former cop claims AG can’t prosecute without a law license

By Susy Kelly skelly@heraldstandard.Com 3 min read
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The attorney for a former Masontown police officer wants a gun theft case thrown out, arguing state Attorney General Kathleen Kane’s suspended law license renders her and her office incapable of prosecuting the case.

“Due to the egregious nature of the continued prosecution of (Robert Kelly) by a body without appropriate authority to prosecute, it is in the interest of justice to dismiss the . . . criminal information and to discharge (Kelly) at this time,” wrote attorney Samuel J. Davis.

Davis represents 33-year-old Kelly in a criminal case that was initiated following a state grand jury investigation into the activity of former and current Fayette County Drug Task Force members.

Davis, in a motion filed last week in Fayette County Court, pointed out that Kane’s license was suspended indefinitely by the state Supreme Court in September. Although she was not required to resign, the state constitution requires the attorney general to maintain an active license, Davis wrote.

Because Kane’s license is inactive, Davis argued, “neither the attorney general nor any of her deputies are permitted to maintain criminal prosecutions until either her license is restored or until she has resigned and the vacancy in the office has been filled.”

Davis likened the AG’s office to a law firm, and said having a non-attorney running a firm, directing its activities and providing legal advice to subordinates as to how cases should be handled, would be unparalleled.

Further, Davis said Kane’s continued participation in prosecuting Kelly is unfair to all attorneys who practice ethically.

“It’s an embarrassment to licensed lawyers,” said Davis.

The Fayette County district attorney’s office should not be permitted to take over prosecution of the case, Davis contended, because the state AG would maintain control over it, and because Kelly was formerly under the district attorney’s supervision.

Chuck Ardo, a spokesman for the AG’s office, said, “We expect the defense bar to use every tool in their toolbox in defending their clients. However, we are confident that the Office of Attorney General is on solid legal footing.”

Following its investigation into allegations Kelly removed guns from Masontown police evidence storage, the grand jury recommended felony counts of theft by unlawful taking, theft by receiving stolen property and possession of a firearm with an obliterated serial number, and four misdemeanor counts of prohibited offensive weapons, which the state AG’s office filed in April.

Davis is asking for Westmoreland County Senior Judge William Ober to hear the motion.

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