Will Kenny Rogers Get A New Trial?
by Tim Stelloh, March 2, 2010
The latest attorney for disgraced Mendo Republican Kenny Rogers, who was convicted last summer of hiring a hitman to kill a political adversary, is claiming that Rogers' last attorney so thoroughly botched his defense that the case deserves another try—this time with the esteemed representation of the Sacramento law firm of Donald Masuda.
A hearing is scheduled for March 26.
One of the primary gripes comes from a tense exchange during Rogers' trial that helped define what Kenny Giffard, Rogers' new attorney, describes as the unfair caricature of Rogers as a racist and a bully. Alan Simon, the victim, was on the stand. Markham was questioning him about a confrontation Simon and Rogers had had years before during a drive to recall Rogers from the Westport County Water District. Rogers had been going door to door to convince recall supporters to change their minds; Simon had declined. According to Simon's testimony, Rogers then lobbed the following bigot bomb: “You want to have a nigger run this town? You want to have a woman — Velma Bowen — who’s sucked the cock of every man in this town be in charge?” (Velma Bowen had organized the recall against Rogers. The black man was Keith Grier, who'd also been involved in water board politics and had his own troubles with Rogers.)
According to Giffard, Markham broke the trial lawyer's golden rule: Never ask a question you don't know the answer to. And Markham, Giffard says, clearly didn't know what Simon was going to say. (At the time, Markham said that part of the conversation described by Simon never happened, though he didn't have it struck from the record until the following day).
Among Giffard's other complaints was Markham's failure to challenge testimony that described Rogers as a vengeful Machiavellian. In particular, he failed to challenge the testimony of a cop that supported a damning—though somewhat strained—theory that Rogers would retaliate against Richard Peacock, the former employee who had been convicted of trying to plug Alan Simon with nine bullets, had Peacock chosen to testify against Rogers (he didn't). Markham had evidence that could have undermined the cop's testimony but he didn't use it, Giffard says.
Finally, Giffard says that Markham should have called Rogers to testify on his own behalf and that evidence from Peacock's younger brother, Michael, which detailed the agreement between Rogers and Richard Peacock, shouldn't have been allowed. (Michael Peacock was murdered in his Placer County trailer shortly after the trial. The investigation is ongoing.)
Prosecutor Tim Stoen said he found little evidence to support Giffard's claims and that he's confident the conviction will stand.