In Wilder Probe, Prosecutor Faces Ethical Quagmire 

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The slope is getting slipperier in the case of the missing $172,571 from Mayor L. Douglas Wilder's 1989 gubernatorial campaign.

Some members of the legal community, including former Richmond Commonwealth's Attorney David Hicks, say the man charged with investigating the lost campaign kitty is too conflicted to render sound judgment.

Richmond Commonwealth's Attorney Michael Herring, who succeeded Hicks in January 2006, has acknowledged having a personal relationship with the primary target of the investigation: Larry Wilder, Doug Wilder's son and former gubernatorial campaign treasurer. Herring has also admitted to being "friends with" Larry Wilder's sister.

"Frankly, I question the viability of any prosecution under this matter," Hicks says. "It's not even close. No. 1, you've got a relationship with Larry. No. 2, you've got a relationship with the mayor. … If the commonwealth's attorney has a conflict, then all of the commonwealth's attorneys have a conflict."

Indeed, Herring has a direct financial tie to Wilder. In addition to receiving state money, Herring's office receives an annual budgetary supplement set by the Wilder administration and approved by City Council. In late May, Herring's office received a six-figure raise from the year before. While Herring's individual pay supplement of $35,710 didn't change, the additional "salary supplements for members of the office," according to the ordinance passed May 29, jumped from $470,000 to $610,000 for the 2007-2008 fiscal year, a 30 percent hike.

"It gives the appearance to the public that there is some sort of favoritism going on here, and that's just not appropriate," local defense attorney Betty Layne DesPortes says. "[Herring's] budget depends upon supplemental funds. Mayor Wilder asked for it to be raised this year. That is a professional conflict of interest."

Jeff Geiger, a local litigation attorney who teaches legal ethics at the University of Richmond, says the ethical dilemma facing Herring isn't "black and white."

"It's a difficult call that he's going to have to make," Geiger says, adding that state conflict of interest laws don't adequately address the issue. "Even if I had crystal clear judgment," he says, "my concern would be how the public would view it."

DesPortes, however, doesn't mince words. The issue isn't whether Herring will directly mishandle the case, she says, but "the appearance of impropriety and its taint over the entire proceedings. Handing it over to another prosecutor outside of his office should have happened a long time ago."

Hicks says he contacted Herring in December 2005 and "offered to send it out of here," before he left office. Hicks also had a personal conflict, having been college buddies with Larry Wilder. "[Herring] said, 'No,' he would take care of it," Hicks recalls.

Herring dismisses his critics — he assigned the case to Assistant Commonwealth's Attorney Chris Bullard — and calls into question Hicks' own ethics. He says Hicks did not offer to bring in a special prosecutor, but rather, "David offered to take care of this — close quote."

The statement made Herring uncomfortable. "Extending the gesture to 'take care of it,' if you will, raised a lot of suspicion on my part," he says.

Sending the case to a special prosecutor isn't as easy as some make it out to be, Herring says, speculating that this case might have made a lot of potential candidates for the job flinch, "given the personalities."

Herring says he solicited input from an independent prosecutor. Herring's investigation is centering on the transfer of funds from the Wilder for Governor campaign account, and whether that act was illegal.

The missing funds were discovered by the State Board of Elections in July 2004 during a routine housecleaning of still-unclosed accounts. After Wilder's former aide and campaign manager Paul Goldman informed elections officials that he couldn't account for the money, the state Board of Elections filed a complaint with the Richmond commonwealth's attorney's office. That office is charged with investigating statewide campaign finance violations.

Herring says he expects to have the case resolved by early August. S

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