Rev. Fairley seeks acquittal, new trial
An attorney for the Rev. Kenneth Fairley is asking the court to acquit his client or order a new trial.
A jury on Sept. 12 found Fairley guilty of two counts of theft of government funds and one count of conspiracy to defraud the government, involving money received from the U.S. Department of Housing and Urban Development through grants administered by the city of Hattiesburg.
Sanford Knott, a Jackson-based attorney, and Arnold Spencer, an attorney from Fort Worth, Texas, filed the motions Monday in the Mississippi Southern District of U.S. District Court.
Spencer wrote in the motion he objected to the introduction of conversations recorded without Fairley's knowledge by Artie Fletcher, who was indicted with Fairley in March on charges of conspiracy to defraud the government and theft of government funds, because Fletcher was not available for cross examination.
Fairley's attorneys say, according to a Supreme Court decision — Crawford v. Washington — that violates Fairley's Sixth Amendment right to confront his accuser.
Spencer said the court was wrong to overrule multiple objections to allowing into evidence Fletcher's recorded conversations with Fairley.
"As the Fifth Circuit has repeatedly held, such statements do not fall within the co-conspirator exception to hearsay," Spencer wrote.
In addition, Spencer said, “ 'Mere idle chatter,' even if prejudicial and made among co-conspirators, is not admissible" because it does not satisfy the elements required for a hearsay exception.
If the taped conversations and other evidence Spencer believes was erroneously admitted was removed, then there would not be any evidence that would convict his client, Spencer wrote.
Furthermore, Spencer wrote, IRS Special Agent Bradley Luker should not have been allowed to testify regarding Fletcher's taped recordings and a civil lawsuit Fletcher filed in 2013 against Fairley, as that evidence all is tantamount to hearsay.
Fletcher, 55, of Picayune, pleaded guilty Sept. 2 in federal court to misprision of felony. He admitted he had knowledge of a felony and did not make it known to authorities. His sentencing for that crime is set for Dec. 19. The maximum penalty is three years in prison with up to one year post-release supervision and up to $250,000 in fines.
Fairley, 62, pastor of Mount Carmel Baptist Church in Hattiesburg, was taken into custody following his conviction, but was released until sentencing on an unsecured $25,000 bond, which means he will pay nothing unless he violates terms of release.
His sentencing is set for 2 p.m. Dec. 23. Fairley faces up to five years in prison and a $250,000 fine for the conspiracy charge, and up to 10 years in prison and a $250,000 fine for each of the two theft charges.
U.S. District Judge Keith Starrett, who presided over trial, and attorneys for the government have not yet filed responses to the motions.
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