The attorney representing U.S. Sen. Rand Paul in his civil suit against his neighbor, Rene Boucher, said in a recent filing that Boucher has not turned over evidence and refuses to testify at a deposition.
Tom Kerrick filed a motion on behalf of Paul to compel Boucher to answer Kerrick’s requests for discovery and sit for a deposition, requesting to be heard Wednesday before Special Judge Tyler Gill.
Paul was tackled by Boucher outside the senator’s home last year in the Rivergreen subdivision.
Boucher pleaded guilty to a federal criminal charge of assaulting a member of Congress and served a 30-day prison sentence this summer, though the federal government, which sought a 21-month incarceration for Boucher, has appealed the penalty.
A decision on the appeal is pending in the U.S. Court of Appeals for the 6th Circuit.
After Boucher was sentenced, Paul sued Boucher on June 22 in Warren Circuit Court for an unspecified amount of damages for injuries related to the assault.
On July 16, Kerrick served Boucher and his attorney, Matt Baker, with a request for a production of documents that have evidentiary value in the civil case.
A 30-day deadline to produce the documents and answer other questions from Kerrick passed with no response from Boucher.
In documents accompanying his motion, Kerrick included an Oct. 15 correspondence from Baker in which he said he would advise the retired physician to exercise his constitutional right under the Fifth Amendment not to incriminate himself “until such time as the prosecution in federal court is fully and finally resolved.”
Kerrick contends that Boucher waived his right against self-incrimination when he pleaded guilty in the criminal case.
“Simply put, he is no longer entitled to be protected by a right he has previous waived,” Kerrick said of Boucher in his motion.
In his motion, Kerrick argues that, while a defendant in a civil case can invoke the Fifth Amendment to support a refusal to testify, that can only be done if the defendant has reason to believe their testimony will incriminate themselves in a different crime.
“Neither federal nor state authorities have suggested that another prosecution arising out of these same set of facts is forthcoming,” Kerrick said in his motion. “Rather, (Boucher) suggests that he will invoke his Fifth Amendment rights to protect himself during the pendency of the government’s sentencing appeal ... Presumably, (Boucher) fears that, if the government prevails and the Sixth Circuit orders him resentenced, his answers during discovery in this case might be used against him during the resentencing hearing. Perhaps so, but that ship has already sailed.”
Gill has previously imposed a temporary injunction that orders Boucher to remain at least 200 feet away from Paul and his family while Boucher is on his property, and at least 50 feet away from the Pauls everywhere else.
Baker has appealed that injunction.
Gill has found Boucher liable for the senator’s injuries, and a jury trial has been set Jan. 28 to determine what amount of damages to be assessed against Boucher.