Conviction concerns: Former prosecutors question testimony of Ky. lawyer in kidnapping case

FRANKFORT, Ky. (WKYT) - Attorneys with the Kentucky Department of Public Advocacy have asked a judge to set aside the conviction and sentence of a man who has been incarcerated for 16 years, after identifying concerns about the testimony of the victim, who is now a central Kentucky prosecutor.

Frankie Covington “is currently incarcerated for not only a crime that he did not commit,” staff attorneys allege in their pleading, “but for a crime that quite possibly never took place.”

Covington, 58, was convicted in 2011 of kidnapping Sharon R. Muse, then a Georgetown lawyer and now Commonwealth’s Attorney for the 14th Judicial Circuit (Bourbon, Scott and Woodford counties).

But a motion filed last month in Bourbon Circuit Court calls into question Muse’s account of what happened, claiming her testimony during the trial “was not just embellished or exaggerated, but was untruthful.”

Covington was arrested April 7, 2006 after Muse (now Muse-Johnson) claimed he showed up at the attorney’s office in Georgetown asking for a ride to a relative’s home, made her drive to Bourbon County, threatened her with a knife and tried to sexually assault her, according to reports at the time.

Yet public advocates allege the victim’s story substantially changed over the years.

“The inconsistent statements really cut towards the validity of the conviction,” said Whitney Browning, a staff attorney in the post-conviction office of the Department of Public Advocacy. “It really undermines the fact that he (Covington) is serving his whole life in prison.”

Post-conviction attorneys at the Department of Public Advocacy say of all the cases that come across their desks - reviewing more than 100 cases each year, with a couple dozen more directly assigned by the courts - few are like this one, which was flagged by the very prosecutors who originally tried the case.

Affidavits from Keith Eardley, an assistant Commonwealth’s Attorney at the time, and Gordie Shaw, who served as Commonwealth’s Attorney for the 14th Circuit from 1999 to 2018, highlight what they call “discrepancies,” “conflicting statements and evidence,” and “conflicting evidentiary details” that they say are at odds with prior statements and evidence presented during the trial.

“When you get a referral from the prosecutors and you go and talk to the investigating officer, and they’re all saying the same things, we can’t not investigate it,” Browning said.

In their court filing, Covington’s attorneys look at several aspects of the story:

Did the victim agree to give Covington a ride?
Did Covington touch her during the ride? If so, in what way?
Did Covington ever hit her?
What happened once the car was in park at the barn?
Did Covington hold a knife to her neck?
Did Muse-Johnson have on a shirt when witnesses found her?
What injuries did Muse-Johnson sustain?

They trace what the victim said about them through:

the 911 call
the recorded statement taken by police at the hospital
a short written statement
a longer written statement
the first victim impact statement
testimony at trial
the second victim impact statement
a radio interview
podcast
website
public library event
and a book published in 2019.

Muse-Johnson’s book is titled “Kidnapped by a Client: The Incredible True Story of an Attorney’s Fight for Justice.” In the book, Frankie Covington’s name has been changed to “Larry Morrison,” because, Muse writes in a footnote, “I choose not to give him further notoriety.”

It was after reading that book that Eardley and Shaw called the Department of Public Advocacy to express “concern that the injuries Mrs. Muse-Johnson described in her book...were inconsistent with testimony and evidence presented at Mr. Covington’s trial,” as the motion to vacate states.

Muse-Johnson was elected Commonwealth’s Attorney in 2018 after defeating Eardley. In a statement, her attorney said she will not comment on the legal filing itself, but blames “these attacks against her” on a political agenda.

It should be noted that Muse-Johnson, as the victim in the case, is not a party to it; additionally, a special prosecutor will represent the Commonwealth in court in her place. The circuit judge has recused himself from the case, which means a special judge will need to be found to hear it.

If Covington’s previous conviction and sentence are thrown out, then the special prosecutor will decide whether or not to bring charges again against Covington. If so, he would face a new trial.

Muse-Johnson has been in the news before.

The attorney general’s office launched an investigation in February into whether her office impaneled too many grand jurors, forcing them to start the process over in some cases.

Muse-Johnson was accused of using public resources to film a TV show pilot that could compromise cases, accusations that Muse-Johnson’s attorney strongly denied. (The attorney general’s office determined that no crime occurred, the Courier Journal reports.)

There were also questions about whether her husband, Rob Johnson, should have been allowed to be on the ballot this fall. (The Kentucky Court of Appeals ultimately denied efforts to remove him from the ballot.) Johnson ran for circuit judge in the same area in which Muse-Johnson serves as Commonwealth’s Attorney, but he lost.

Johnson previously served as a 14th Circuit judge for 12 years, presiding over more than 100 trials, his website touts - including the Covington case back in 2011.

“Someone asked me if my client was hopeful. And I’m like, ‘You know, that’s a great question,’” Whitney Browning, a post-conviction attorney representing Covington in the case, told WKYT’s Garrett Wymer. “But I think at this point we’ve lost hope in the criminal justice system. And I think that’s a very sad point for us to be at. I really hope we can move forward from here and we can fix this for Mr. Covington.”

You can read the motion to vacate filed by the Department of Public Advocacy Post-Conviction Office here, or embedded below.

Frankie Covington v. Common... by WKYT