A state attorney general’s investigator now under scrutiny by his office has been accused at least three times of lying to grand juries in recent years.
In the three unrelated cases, Medicaid fraud investigator David Reed Wilbers allegedly gave false testimony to obtain felony charges. In each instance, Wilbers was the only witness to testify before the grand jury, court records show. All three cases eventually were dismissed.
One defendant whom Wilbers was found to have wrongly accused spent five days in a Florida jail prior to posting bond.
It appears from available records that Wilbers has never been disciplined by the attorney general’s office for misconduct. It’s unclear whether his actions ever came under scrutiny by the office until he was placed on paid administrative leave earlier this week.
Wilbers’ furlough followed a September 27 text message from Gov. Matt Bevin to Attorney General Andy Beshear, calling Beshear’s office “an increasing embarrassment to the Commonwealth.” Bevin was referring to Wilbers’ alleged misconduct in a Boyle County Medicaid fraud case, which was first reported by The Advocate-Messenger newspaper in Danville.
The decision on Monday to put Wilbers on leave also followed requests to the attorney general’s office by WFPL’s Kentucky Center for Investigative Reporting and the Lexington Herald-Leader for copies of Wilbers’ personnel file.
The documents provided to KyCIR show no discipline or prior investigation of Wilbers by the attorney general’s office. When he was promoted in 2011, he was described as “an outstanding employee” and as “an asset to this office.”
Beshear’s office did not respond to a request to make Wilbers’ former boss — Mitchel Denham, now head of the civil division — available for comment.
Beshear’s office told Wilbers in a two-page letter on Monday that he was being placed on leave because he may have violated investigatory procedures and protocols in the Boyle County case, according to The Herald-Leader.
He was ordered to turn in any state-issued weapons, badges, credit cards, cell phones, keys to state property, his state identification card and any other state government equipment he had, the newspaper reported.
The letter, which the attorney general’s office declined to provide to KyCIR, also said that if the attorney general’s investigation concludes Wilbers did nothing wrong, all records related to the inquiry will be purged from his employee file, the newspaper said.
Wilbers’ annual salary is $43,376. The former Georgetown police officer has been an investigator with the attorney general’s office since January 2008, according to his personnel file. He could not be reached for comment on Wednesday.
Boyle County Case
In the Boyle County case, Wilbers’ testimony resulted in a three-count indictment in February charging Edward Donzell Parker with Medicaid fraud. Parker, a licensed behavior analyst who holds a Ph.D, founded Bluegrass Autism Services in Danville in 2011.
In August, Parker’s attorneys filed a motion to dismiss the indictment, alleging that Wilbers “made false statements and blatantly misled the grand jury on several occasions.” The motion cited four false or misleading statements by Wilbers to grand jurors. On September 26, Circuit Judge Darren Peckler dismissed the case with the assent of the attorney general’s office.
Peckler’s written order did not make any specific findings concerning Wilbers’ alleged misconduct.
False Or Misleading Statements In Franklin County
But in a separate case, Franklin Circuit Judge Thomas Wingate ruled in 2012 that Wilbers “made certain false and/or misleading statements to the grand jury to obtain the indictment in this case.”
Wingate then dismissed an indictment against Elaine Royse, a licensed practical nurse and a former employee of a Frankfort nursing home.
Royse was accused of having “knowingly neglected” a patient under her care, and failing “to perform basic caretaker functions knowing they were necessary to maintain the health and welfare of the victim.” If convicted, she could have been sentenced to up to 10 years in prison.
Wilbers’ testimony included an assertion that Royse failed to notify her superiors about the patient’s declining condition. In fact, Wingate ruled, Royse “proved that she contacted her superior several times and had already given her notice of resignation because she felt that the facility was not being operated in a way that allowed nurses to provide high-quality care.”
The judge noted:
“The court believes that the purpose of a grand jury is to indict felonious conduct, not possible negligence or a simple misunderstanding between co-workers. If the court allowed this matter to go forward, there would be very few nurses in this state who would not be guilty of a Class C felony at one time or another. Such a prosecution is not the intent of the drafters of our penal code.”
Following Wingate’s dismissal, the attorney general’s office — then led by Jack Conway — issued a statement essentially defending Wilbers, according to The Herald-Leader. The statement cited Wilbers’ “more than 30 years of law-enforcement experience,” the newspaper said, and contended that the information cited in Wingate’s order “was not presented to” Wilbers until after Royse’s indictment.
In September 2013, a three-judge panel of the Kentucky Court of Appeals unanimously upheld Wingate’s ruling. The Kentucky Supreme Court declined to review the case.
Despite her exoneration by the legal system, the 52-year-old Royse told KyCIR that the matter has devastated her. She said she has little money, cannot find full-time employment and lives in a one-bedroom apartment. Her parents paid her legal bills, which she said exceeded $100,000, and still provide some financial support.
Her daughter, with whom she shared a house, couldn’t stand the stigma of the criminal case and moved to Georgia.
“I was humiliated,” Royse said. “I don’t think this black cloud will ever go away.”
Logan County Case Dismissed
The third instance of alleged misconduct by Wilbers involved the 2009 Logan County indictment of Melissa Lyon, a nursing-home aide accused of abusing or neglecting a patient.
That case was dismissed in 2010 after Lyon’s attorney asserted that Wilbers made nine misrepresentations to the grand jury. The attorney, Steve Romines of Louisville, also alleged that Wilbers gave the patient’s daughter the name and telephone number of an attorney who later filed file a civil suit against Lyon and others.
In court, Romines said it was wrong for a “government agent” to refer a case to a plaintiff’s lawyer for the purposes of filing a lawsuit.
“Obviously the civil case is much better if someone gets convicted of this,” Romines said. “So he (Wilbers) goes in front of the grand jury and testified, and lies. The evidence will be that he lied.”
Romines also contended that Lyon “never would have been indicted but for the things that he (Wilbers) told” the grand jury. Wilbers “perjured himself before the grand jury.”
In his September 2010 order dismissing the indictment, Circuit Judge Tyler Gill said that Wilbers’ attorney referral “could theoretically be relevant” if Wilbers had a financial motive to manipulate evidence. Commonwealth’s Attorney, J. Gail Guiling, did not oppose the judge’s dismissal.
Judge Gill did not directly address Wilbers’ alleged misrepresentations to the grand jury.
Gill’s order said prosecutors could “freshly evaluate” evidence in the case to determine whether a new indictment should be sought. But the case was never revived. Guiling told KyCIR on Tuesday she made that decision because there was “always a strong possibility” that a jury could have believed Lyon’s “actions were not intentional.”
She added that the allegations of misconduct by Wilbers “had no bearing on my decision.”
Reporter R.G. Dunlop can be reached at firstname.lastname@example.org or (502) 814.6533.
This story was reported by WFPL’s Kentucky Center for Investigative Reporting.