[JK: This is a revised post from one I put up earlier this evening. When I originally read the Hicks website, I failed to notice the buttons beside their text. These were links to two affidavits from witnesses to the original incident that led to charges. The original post was badly tainted by my ignorance and required me to rewrite the post. While it was only up briefly I felt an urgency to correct the record with all speed. My editor is in Europe on holiday so I am sure this version will suffer but that is the price I must pay for my sloppiness.]
Kendall Hicks’ campaign has posted a document that purports to have “cleared [him] of false allegations” in the Gloversville incident which resulted in his arrest for allegedly assaulting a woman he was associated with.
The reality is that the Hicks Campaign made a series of claims for which they provided inadequate documentation. This new documents they have posted not only fail to establish with any definitiveness what happened, they contribute further to raising questions about the events that led to his arrest.
A Little Background
Mr. Hicks has asserted on a number of occasions that he had documents that absolved him of any wrongdoing in this police incident. At the recent forum on immigration, he told the audience that he had the papers to prove his innocence in his car.
With that in mind I emailed Mr. Hicks and his campaign manager, Ellen Egger- Aimone asking him to provide the documents to me. I suggested that if they were unwilling to provide me with the documents, that they post them on their website and Facebook page. While they did not respond to my email, on the following day they posted a number of documents on their website along with a link to them on their Facebook page.
Along with the document they posted a narrative of what they say happened in the incident and made a series of claims.
They claimed that :
* there are “multiple sworn statements negating the charge, including the victim, herself…”.
* “the allegations were proven to be false…”
* an investigation by the army (he was driving an army vehicle when the incident occurred) cleared him of all charges.
* “Though Hicks’s girlfriend disputed the allegations, the Gloversville officer filed a misdemeanor anyway, which was reported in Gloversville’s Leader-Herald’s daily police blotter.“
* That the victim of the assault provided a sworn statement withdrawing her original allegations.
* That the victim disputed the charges against Mr. Hicks.
* “His girlfriend [the victim] remained with the other two passengers” [JK:They never left the original site of the incident]
What The Documents Reveal
* Mr. Hicks was charged with misdemeanor assault in the third degree
* Mr. Hicks was charged with misdemeanor reckless endangerment in the second degree
* In a plea agreement with the Fulton County District Attorney, Mr. Hicks accepted an Adjournment in Contemplation of Dismissal (ACOD).
* Mister Hicks’ misdemeanors were dismissed six months after his hearing having complied with the terms of the ACOD
* Two persons who witnessed the event signed affidavits defending Mr. Hicks and challenging the narrative in the police report. One of the witnesses was in the military vehicle driving with Mr. Hicks to Syracuse.
* One of the affidavits was signed by a person riding with the victim in Mr. Hicks’ car. Her statement asserts that she never saw Mr. Hicks physically abuse the victim and when the victim returned, the victim told her that all she and Mr. Hicks did was yell at each other.
* In contradiction to the narrative offered by the Hicks Campaign which asserted that the victim remained at the original scene of the incident, the two affidavits state that the victim climbed into the back of Mr. Hicks car when he drove off.
What is an ACOD?
Wikipedia describes an ACOD as follows:
In criminal procedure, an adjournment in contemplation of dismissal (ACD or ACOD) allows a court to defer the disposition of a defendant’s case, with the potential that the defendant’s charge will be dismissed if the defendant does not engage in additional criminal conduct or other acts prohibited by the court as a condition of the ACD [JK: My emphasis added].
It should be clear that ACOD does not address whatever criminal conduct may have occurred precipitating the arrest. It is, as the first document shows, a plea agreement. It sets as its condition that if the defendant does not violate its terms that after a certain period of time (in this case six months) the charges will be dismissed.
What The Documents Do Not Tell Us
1. Mr. Hicks did not provide the terms of the ACOD. We do not know what he was required to do to meet the terms of the agreement. It could have been as broad as requiring that he not participate in any unlawful behavior that would bring him before the court again. It could have been more specific and related to what precipitated the original arrest. Without the terms, we do not know.
2. Mr. Hicks does not provide the affidavit of the victim exonerating him as asserted in the campaign’s narrative.
3. Mr. Hicks campaign claim that the victim “disputed the charges” against Mr. Hicks are contradicted by the police report in which the victim declined to pursue charges expressing a fear of retribution from Mr. Hicks.
3. Mr. Hicks alleges that the army cleared him of any culpability in the incident. He provides no documentation for this.
What Do We Now Know As A Result Of The Newly Released Document?
Two witnesses disputed the charges in signed affidavits
The campaign provided no affidavit from the person who brought the criminal complaint that withdrew the charges.
There is no affidavit from the victim exonerating Mr. Hicks as claimed by his campaign.
For some odd reason, the narrative from the campaign claims that Mr. Hicks drove off leaving the victim at the site of the incident while the affidavits state that she jumped into his vehicle as he drove away.
While the affidavits appear credible, they conflict with other witnesses and with the police report. Unfortunately for Mr. Hicks, the conflicting statements make any definitive determination of what occurred problematic.
The fact that the Fulton County district attorney did not dismiss the case but insisted on a plea agreement for an ACOD raises concerns.
We know that the charges were indeed dismissed but only after he had complied with the terms of the ACOD. We know that Mr. Hicks has not provided the documentation for the terms of the ACOD.
Without More Information, The Public Is In No Position To Determine Mr. Hicks Culpability
The release of the terms of the ACOD might help us better understand what happened. It would be helpful if Mr. Hicks would release this very important document. It is unclear why he has not but there is time before the election in November.
It would also have been helpful to learn from the victim the full history of her relationship with Mr. Hicks.
In fairness to Mr. Hicks, his agreement to a plea deal with an ACOD is not an admission of guilt. Assuming that the requirements of the ACOD were not onerous, it makes sense that he would agree to it. A trial would have been very expensive and the result of the ACOD while less determinative than a trial still resulted in the dismissal of his charges.
The Folly Of Running For Office
In the end, I fully admit that I do not know what happened. What I do know is that it was ill advised for Mr. Hicks to run for Commissioner of Public Safety. Was it naïveté or poor judgement that he did not realize that in the age of the internet the story of his arrest would become public? Did he think that the documents he had would really convince the voters that nothing happened? Did people try to dissuade him from running and he ignored their advice?
As the old saying goes, life is not fair. The fact remains that there is a cloud over Mr. Hicks that, at least based on his documents, he is unable to free himself of. If he is innocent of the original charges it is very sad, but his decision to run for Public Safety Commissioner knowing that the charges would become public demonstrates a lack of judgement in itself that I do not believe he can overcome.
Here are images from their website with their narrative and a court document (Link To actual web page)
Court Related Documents
Here is a fuller set of court documents (the document on their website displays the page labeled “Certificate of Disposition.”)
The first document is from the Fulton County District Attorney’s office recommending to the judge a reduced plea. The third documents establishes that Mr. Hicks adhered to the terms of the “Adjournment In Contemplation of Dismissal” and on August 14, 2013 the charges were dismissed.