Prosecutors to appeal judge's dismissal of count against Carroll Fisher
Thursday, December 23rd 2004, 5:55 am
By: News On 6
OKLAHOMA CITY (AP) -- State prosecutors plan to appeal a judge's decision on Wednesday to dismiss an embezzlement count against former state Insurance Commissioner Carroll Fisher.
"I'm not seeing it," Oklahoma County Special Judge Fred Doak said in ruling against the embezzlement count. Doak allowed a related perjury count to stand.
Assistant Attorney General Joel-lyn McCormick said her office is confident it will win the appeal to a district judge.
Fisher, 64, still faces four other criminal counts.
Wednesday's ruling stems from a case where Fisher deposited a $1,000 campaign check into his overdrawn personal bank account in May 2003.
Fisher didn't disclose the donation on his state campaign reports, according to testimony. He already had formed a 2006 re-election campaign.
After his indictment in July, Fisher returned $1,000 to the donor, Mississippi insurance company owner Johnny Morgan.
Fisher's actions cannot be considered embezzlement under the way Oklahoma law is written, Doak ruled.
Defense attorney Robert L. Wyatt IV had argued that personal use of a campaign contribution "is not a crime under Oklahoma law."
Doak said what Fisher is accused of doing may be "a breach of faith between Mr. Fisher and Mr. Morgan ... but that's not a crime."
The judge also said Fisher could face consequences from the state Ethics Commission or from tax agencies.
The state Ethics Commission already has publicly reprimanded Fisher over the $1,000 campaign check. The commission didn't seek a civil fine.
Doak ruled that prosecutors had shown enough evidence for a trial on the perjury count. Fisher is accused of lying when he swore that a 2003 re-election campaign report was "true and correct."
A March 2 hearing is set for a legal challenge to the perjury count and the other cases.
Fisher seeks dismissal of all charges, arguing that the state's multicounty grand jury never had proper authority to investigate and indict him.
He quit Sept. 24 in advance of an ouster trial in the state Senate.
Fisher's attorney suggested the donor might have intended the $1,000 to go to Fisher's failed 2004 U.S. Senate campaign. If so, Fisher couldn't have committed a state crime.
Morgan has given conflicting statements about his intent.