CHARLESTON — Lawyers for former West Virginia Supreme Court Justice Menis Ketchum are asking that he only be placed on probation or fined when he is sentenced this month on a federal wire fraud charge.
Federal prosecutors counter that an appropriate punishment for Ketchum would be adhering to federal sentencing guidelines, which include a fine and an advisory imprisonment range of six to 12 months.
“Corruption is a cancer that erodes the public’s confidence in the government and undermines the rule of law,” federal prosecutors wrote.
Each side recently filed documents meant to persuade U.S. District Judge John Copenhaver during sentencing, which is currently scheduled for Feb. 27.
Last week, Copenhaver sentenced Ketchum’s former Supreme Court colleague, Allen Loughry, to two years in federal prison on federal fraud charges. The judge said Loughry had not demonstrated remorse.
Rather than going to trial, Ketchum pleaded guilty to one wire fraud count.
The former justice admitted to using a state-owned vehicle and a state-issued gas card for personal use for golf trips to Virginia. He resigned from the Supreme Court in July, a day before impeachment proceedings were beginning.
Ketchum also agreed to pay back the state up to $700.
Lawyers for Ketchum, who referred to him simply as Menis in their filing, suggested that a pre-sentence report overcounted the misdeeds that make up the sentencing guidelines in his case.
There are four sentencing zones: A, B, C, and D. Zone A consists of sentencing ranges of 0 to 6 months. Zone B consists of sentencing ranges above Zone A but with a maximum penalty of no more than 15 months.
“We respectfully submit that a term of imprisonment should not be imposed if the court finds that Menis’ total offense level is ten, which falls within Zone B,” his lawyers wrote.
“Moreover, we submit that Menis’ total offense level should be reduced to level eight, Zone A, and he should be placed on probation only or fined only.”
Lawyers for Ketchum also take note of several factors they believe should lead to some leniency.
Those include his age, 76, and lack of criminal history. Ketchum’s lawyers also note his activity in community activities and professional service.
Also, “as a result of his conviction, he has lost his job, lost his state pension, lost his law license and lost his good reputation.”
And, “he has expressed sincere remorse which is acknowledged in the presentence report.”
His lawyers note that before Ketchum knew he was subject to federal investigation he requested that the Supreme Court issue him amended W-2s regarding the use of the state car. He then paid the related income taxes.
After he discovered there was a federal investigation, he started reimbursing the state for his personal use of the state car.
“He has totally reimbursed the state for the personal use of the car, except for Seven Hundred Forty-Nine Dollars Seventy-Seven Cents ($749.77) that was discovered after he learned of the federal investigation,” his lawyers wrote.
“He did not reimburse this amount on the advice of his lawyer who was having talks with Anna Forbes, assistant United States Attorney.”
Federal prosecutors, in their own filing, agree with much of that.
“Defendant Ketchum has accepted responsibility for his actions. He has demonstrated remorse, and has not displayed a continued arrogance or willingness to abuse authority,” prosecutors wrote.
“He is in his seventies and is not a violent person. 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.”
But the prosecutors say Ketchum’s offense is still very serious because he violated the trust of citizens.
“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,” prosecutors wrote.
“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.”
In asking that the sentence include a fine and possible jail time, prosecutors say it’s important to make an example of Ketchum.
“In a case such as this, general deterrence is the most important factor in determining an appropriate sentence. Fraud crimes committed by public officials, particularly by those in high office, are very difficult to identify, investigate, and prosecute,” prosecutors wrote.
“These types of crimes, even for relatively minor gains, impose a tremendous social cost when finally exposed, for they weaken the public’s trust and confidence in government and breed a cynicism and distrust of government that is not conducive to a healthy society. Judges in particular must obey the law, because they oversee the judicial system.”