SHEPHERDSVILLE, Ky. (WDRB) – For more than three weeks earlier this year, Lee Fenton was lodged in the Bullitt County jail unable to pay a $40,000 cash bond on charges of felony strangulation and assault stemming from a criminal complaint filed by a citizen.
But shortly after his arrest, Fenton’s defense attorney asked for the case to be dismissed because the alleged victim wasn’t responding to investigators and there was little evidence tying Fenton to the crime.
And the prosecutor handling the case asked her boss for permission to dismiss the case, making the same argument.
But the Fenton case continued. The reason: A policy put in place by the Bullitt County Attorney’s Office that takes a hard line on felony charges, refusing to amend them once they are filed, according to a whistleblower lawsuit filed by a former prosecutor.
Fenton was one of an unknown number of criminal defendants who wrongly spent time in jail or faced serious felony charges after being overcharged, former Assistant Bullitt County Attorney Dana Cohen claims in the lawsuit filed in June.
The suit claims the unwritten edict caused many people to spend time in jail without a proper investigation of their case, bogged down the criminal justice system as grand jurors and the commonwealth’s attorney’s office spent time with felonies that should have been at best misdemeanor or simply dismissed.
“We were told, ‘No, we don’t drop felony charges, we don’t do that,’” Cohen recalled in a recent interview with WDRB News. “Once felony charges are taken, we do not amend them.”
Typically, it is not uncommon for police officers to charge someone with a felony but then work with a prosecutor to amend it to a misdemeanor when more evidence is available. And citizen complaints are typically reviewed to determine what the charge should be.
For example, golfer Scottie Scheffler’s felony assault case in Louisville for allegedly dragging a police officer was dismissed by Jefferson County Attorney Mike O'Connell after he determined Scheffler's assertion that the incident was a "big misunderstanding" was "corroborated by the evidence."
Fenton could not be reached for comment, and his attorney did not return messages.
The judge released him on his own recognizance and then on March 19 dismissed the case, when the alleged victim again failed to show up for court or contact investigators.
“We had no proof, no medical records and … no victim,” Cohen said. “What can happen to a human being when they are sitting in jail” for weeks? “What happened to his employment? What happened if he had children he was supposed to be supporting?”
A ‘tough on crime’ policy?
Cohen was assigned the case when Fenton was arraigned in February. Shortly after that, she said she and her supervisor, Nathan Batey, went to County Attorney Tammy Baker and told her the charges needed to be dropped as there was no proof a crime had been committed and the victim hadn’t responded.
Weeks later, Fenton’s defense attorney asked that the case be dismissed, saying it was “extremely thin” and that the alleged victim was not responding to police or prosecutors, according to a video of the hearing.
The policy as explained to prosecutors in the office, according to Cohen, was not to amend felony charges and instead let them proceed through court until a judge, grand jury or prosecutor with the Bullitt Commonwealth’s Attorney’s office decided to move forward or drop the charges.
This allowed the county attorney’s office to appear "'tough on crime,' a concept that Baker emphasized was very important to her personally, so that the public would perceive her favorably,” according to the lawsuit.
The lawsuit claims Cohen was eventually fired for fighting against the office policy and notifying police, judges and other attorneys about it.
The Commonwealth’s Attorney in Bullitt County, Bailey Taylor, declined to comment on the allegations.
Batey, who recently quit the county attorney’s office and is not a plaintiff in the lawsuit, did not return messages seeking comment for this story.
Included as part of the lawsuit is an email Batey sent February 21 to local defense attorneys and the public defender’s office making them “aware that the County Attorney has informed me of a policy change for the felony cases.”
He warned the change could increase the number of hearings for the attorneys. Cohen said she and Batey also told police officers they would have to come to court more often, as their attendance is required for felony hearings.
“Why do we have to come to court on every single case, when we agree that these felonies should be amended?” police asked Cohen, according to the lawsuit.
Some Bullitt County defense attorneys contacted for this story acknowledged the overcharging issue within the Bullitt County Attorney’s Office but did not want to talk on record for fear of angering Baker.
“The policy put in place by the elected official was conveyed to the defense bar by the prosecutors that handled court,” said one defense attorney, asking that he not be identified. “The policy was that everything charged as a felony would have to be sent to the grand jury and the commonwealth’s attorney regardless of the wishes of victims, officers or the prosecutors actually doing the work.”
Duncan Varda, head of the Bullitt County Department of Public Advocacy, which represents defendants who cannot afford their own attorney, would not talk in specifics about the lawsuit but said overcharging is an issue in Bullitt and other counties.
“It has been clear that there is less flexibility for prosecutors at the district level than we would like as defense attorneys to be able to make decisions and negotiate,” he said in an interview.
Varda said he didn’t know about any specific written policy in the Bullitt County attorney’s office.
“I think all prosecutors are under a burden to produce felony convictions in order to demonstrate their record,” he said.
Asked about Cohen and Batey’s reputations, Varda said both are very well thought of in the legal community.
“I think they are very community minded individuals,” he said.
Baker declined to be interviewed but said in a statement that Cohen is a “disgruntled” former employee fired for poor performance and the office “does not have any policy in place stating that felonies should never be amended. The prosecutors in my office are always expected to handle their cases in compliance with their ethical duties.
“All I ask is that when felonies are amended the prosecutor write a memo detailing the reasons for the amendment and that the same information be written into our file. This process is in place so that I am able to ensure that the citizens of Bullitt County and the greater Commonwealth are best protected.”
Not an isolated incident
Cohen said that she could have lost her law license for leaving Fenton in jail when she knew there was not enough evidence for him to be there. She said she refused to handle the case, so another prosecutor took over until it was dismissed.
But Fenton’s case was far from an isolated incident, according to Cohen and the lawsuit.
In another case, Cohen said she was handling a DUI that was upgraded to a felony because the officer believed the defendant had wrecked into another car, causing more than $10,000 in damages.
But before a court hearing, the officer acknowledged to Cohen that he did not see damage to the other vehicle and made a mistake when filing the charge.
Even with that knowledge and the officer’s approval, Cohen could not amend the case on her own.
Instead of simply amending the case back to a DUI traffic charge, Cohen said she had to call an official in her office who demanded to talk to the officer before the felony charge was dropped.
Other times, such cases simply continued through the system without change, she said.
“Not being able to amend any felony charges is not ethical, it’s not doable,” Cohen said.
The unwritten rule, according to Cohen, stemmed from Baker’s campaign promise when she was elected in 2022 that she would be tough on crime.
Cohen said felony cases that should have been misdemeanors, at most, were being sent to the Bullitt County grand jury, where they would often be dismissed.
“Over and over and over,” she said. “This was very frustrating … with people staying in jail who should not have been in jail. People were facing charges that were way more than anything they did, which can ruin your life. Even if you are not convicted of it, it can remain on your record.”
Cohen, a prosecutor since 2004, said she started working for the Bullitt County Attorney’s office in January 2023 and was fired March 6, 2024. She claims she was let go for expressing her disagreement with Baker and other whistleblower activities.
“It caused more chaos than I’ve ever experienced,” said Cohen, who previously worked as a prosecutor in Louisville, of the policy. “When you take the prosecutor’s discretion away, everything grinds to a halt.”
In her statements to WDRB, Baker said Cohen was fired for “not meeting expectations and dismissing” concerns about her behavior.
Cohen said she had positive reviews and no disciplinary taken against her while with the office.
Five weeks before Cohen was fired, Baker announced on Facebook that she had won an award given by the FBI for her work with crimes against children.
“She has been a wonderful addition to our team,” Baker wrote.
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