Attorney general’s office mum on reasons; Thouvenell case could be imperiled

By PHYLLIS ZORN

Staff writer

An apparent shortage of prosecutors working for the state attorney general’s office is to blame for a six-year-old Marion County case being sent back to the county for trial — but the AG’s office isn’t talking.

Despite the Record’s repeated efforts to find out why the case was sent back to the county, AG spokesman John Milburn said he had been told not to answer questions about the matter.

Milburn said Tuesday that he was not authorized to release information about the matter to the press at this time.

He said that by Thursday he might be able to send a general press release to media outlets in the state, but that he had been told not to discuss the situation yet.

“They don’t want to comment right now,” Milburn said.

When a press release is issued, it will contain broader information, he said.

County attorney Joel Ensey said he was told in December that the AG’s office had only two prosecutors to handle serious criminal cases, so prosecution of Jerry Thouvenell, a Marion man charged in 2017 with 12 counts of aggravated indecent liberties with a child under 14 and one count of battery, will have to be handled by him.

Ensey, having to start from Square One on a case the AG’s office had handled since it was filed, now needs time to prepare for trial.

He has asked for Thouvenell’s trial to be delayed yet again. A hearing today will let a judge decide whether to delay the trial again, and how long to delay it.

Rumors say the AG’s office is dropping prosecution of numerous cases across the state, but the Record was not able to confirm that with area counties. Other counties in the area either had not asked the AG’s office to prosecute cases or did not have any serious cases in the past few years.

“We haven’t had any cases in the last six months that were being prosecuted by the attorney general’s office, so we haven’t had any come back to us,” Harvey County attorney Heather Figger said.

Butler County attorney Darrin Devinney said his office did all its own prosecution.

He speculates that attorney general Kris Kobach might not be able to hire prosecutors.

“There’s an incredible lack of attorneys and a lack of prosecutors,” Devinney said.

Despite sending back criminal cases, Kobach has been able to focus on federal cases. He recently has joined several lawsuits challenging federal authorities and regulations.

A Tuesday press release from Milburn said Kobach would sue the Biden administration unless the U.S. Fish and Wildlife Service withdrew a rule that lists the lesser prairie chicken as a threatened species.

On Thursday, a press release announced Kobach has joined a 25-state coalition of attorneys general in a lawsuit over a U.S. Department of Labor rule that would affect the retirement accounts of millions of people.

On Jan. 25, his office announced he and 24 other state attorneys general had filed an amicus brief in support of a federal criminal prohibition on encouraging or inducing illegal immigration into the United States.

On Jan. 24, his office announced that he and 18 other attorneys general were suing the Biden administration over a new U.S. Department of Homeland Security program that “unlawfully creates a de facto path to citizenship for hundreds of thousands of aliens.”

On Jan. 19, Kobach’s office announced that he had issued an open letter to U.S. attorney general Merrick Garland asking that the Department of Justice conduct a thorough, independent, and transparent investigation into President Biden’s handling and storage of confidential records.

Thouvenell’s indecent liberties charges, because the victims were younger than 14, fall under a Kansas law that makes them off-grid crimes. He could be sentenced to life in prison if convicted.

When and whether Thouvenell will be brought to trial is unknown. Ensey is in a race against the clock.

Thouvenell waived preliminary hearing and arraignment Oct. 19, 2017.

Under law, prosecutors must bring a case to trial within 150 days after the defendant is arraigned.

The majority of 14 times the trial has been delayed were at the request of Thouvenell’s lawyers, which means the delays don’t count toward the statutory 150-day limit. A few delays have been made by the court or because of changes in AG prosecutors.

That leaves Ensey less than five months to begin Thouvenell’s trial or charges must be dismissed.