Defense: Politics is behind federal charge against KY man pardoned in state crime

A Kentucky man pardoned on a state homicide conviction but now facing a federal murder charge for the same crime has raised an argument that politics underlies the prosecution.

An attorney for Patrick Baker included the claim in a memorandum filed in court Tuesday, referring to the “political selective prosecution” of Baker

However, during a hearing on Wednesday, U.S. District Judge Claria Horn Boom said she would bar Baker’s lawyers from presenting a defense of selective prosecution.

“If you attempt to do that, this court will quickly cut you off,” Boom told Steven Rush Romines, one of Baker’s attorneys.

A state jury convicted Baker, now 43, in 2017 in the death of a Knox County drug dealer killed during a home invasion by two men allegedly trying to steal money and drugs.

The jury acquitted Baker on a murder charge but convicted him on a charge of reckless homicide, as well as charges of robbery, impersonating a police officer and tampering with physical evidence for allegedly disposing of the homicide weapon.

A judge sentenced him to 19 years in prison, but just two years later, then-Gov. Matt Bevin commuted his sentence and pardoned him.

It was one of hundreds of pardons and commutations Bevin, a Republican, issued in his final days in office, but was more controversial than many because members of Baker’s family had held a political fundraiser for Bevin in Corbin in 2018, raising $21,500.

State officials of both parties, including Attorney General Daniel Cameron, asked federal authorities to investigate Bevin’s pardons, pointing particularly to the one for Patrick Baker.

A former fiancee of Baker’s told federal authorities she believed the fundraiser was “crucial” to getting Baker released, but Bevin has been adamant that politics had nothing to do with his decision to pardon Baker.

One of Baker’s defense attorneys, Rob Eggert, said in the memo filed this week that presenting evidence about Baker being acquitted of murder, and of the pardon by Bevin, “will be necessary and relevant to demonstrate the political selective prosecution of Mr. Baker.”

In a supplemental motion filed Wednesday after Boom asked for more detail, Eggert said that based on research by Baker’s attorneys, there has never been a case in which a person had been acquitted and pardoned and then later indicted in federal court over the same crime.

Baker was only indicted in federal court after the new administration of Gov. Andy Beshear, a Democrat, took over, Eggert said.

The new charge against Baker is that he killed Donald Mills as part of a drug crime.

No one at the first state trial alleged Baker was a drug trafficker; that theory was “created” by the prosecution in the federal case, Eggert said.

During Wednesday’s hearing, Romines said federal authorities have encouraged witnesses to change their testimony to fit the elements required to prove Baker guilty in the federal case.

The state charge against Baker did not require a finding that he took part in a drug conspiracy in order to convict him, but the federal case does.

But the prosecutor, Assistant U.S. Attorney Jenna E. Reed, said drug trafficking was a theme throughout Baker’s state trial in 2017. Baker committed the home invasion to try to get a large quantity of oxycodone pain pills, she said.

Reed said federal authorities have done nothing improper in investigating Baker.

Boom said that just because a witness did not testify about drugs in the state case does not mean he or she has changed testimony.

Reed had argued that defense attorneys should not be allowed to raise the issue of selective prosecution, or to mention Baker’s pardon because it is irrelevant to the issue of whether Baker killed Mills.

Reed said such a claim is not a defense to the merits of the criminal charge, but rather an assertion that a prosecutor brought the charge for improper reasons.

Reed cited a court decision that said a selective prosecution claim is “a matter that is independent of a defendant’s guilt or innocence, so it is not a matter for the jury.”

Boom cited the same case in disallowing a selective prosecution defense.

The judge also said defense attorneys will not be allowed to mention Bevin’s pardon of Baker.

Baker’s trial is scheduled to start Aug. 9 with jury selection and could last two weeks.

He could be sentenced to death if convicted. The government has not yet decided whether to seek the death penalty in the case.

The administration of President Joe Biden has backed away from seeking the death penalty in some federal cases in which prosecutors were authorized to seek death sentences under President Donald Trump.