My working assumption is that Tim Profitt, the Rand Paul volunteer county coordinator, did not consult an attorney before confessing to the AP that he was the stomper — and explaining that the camera angle made the video look worse than the actual stomping was. Confessing to the press was the second bad move Profitt apparently made in the last 18 hours.
TPM Reader DW, who is licensed to practice in Kentucky although he doesn’t live there any longer, checks in:
I am from KY and still licensed to practice law there among other places. (I have lived elsewhere for many years.) 33 years ago I was Ast. Att’y Gen. of KY doing primarily criminal appellate litigation.
The decision to prosecute will be made either by Ray Larson, Commonwealth Attorney if it is a felony or Larry Roberts, County Attorney if it is a misdemeanor. I would expect, however, for this to be presented to a grand jury but either Larson or Roberts would need to present it.
The Lexington-Fayette police department, which is evidently conducting the investigation, is very professional and non-political. They can charge under KY law without consulting either Larson or Roberts, but as a practical matter I am certain there is consultation going on.
I worked with Larson 30+ years ago but have not spoken to him in many years. Larson is elected as a Democrat, BUT he is totally non-partisan in how he makes decisions on prosecutions. Larry Roberts, likewise, is elected as a Democrat; although I met him many years ago, I cannot say that I know him. He also has a reputation within the legal community of being of the highest personal integrity and makes decisions on prosecutions strictly on the merits and on a totally non-partisan basis.
Although both men are elected Democrats, politics will not have anything to do with any decision either may make in this case. I should also state that there is no question that these are tough, hard-nosed prosecutors.
Based upon the video and assuming there is no exculpatory evidence not on the video, the perpetrator(s) would be well advised to get a first rate criminal attorney and start plea bargaining and hope they can do some time on a misdemeanor in the Fayette County jail. If the report is correct that the victim suffered a concussion, then a felony prosecution is very a distinct possibility. No competent defense attorney wants to cross examine that video.
David Kurtz is Managing Editor and Washington Bureau Chief of Talking Points Memo where he oversees the news operations of TPM and its sister sites.