Kent Hovind’s Half-Billion Dollar Lawsuit – Legal Analysis

Independent Baptist minister and Young Earth Creationist Kent Hovind (Doctor Dino) has been loudly and publicly promising to sue the United States for what he considers unjust imprisonment and theft of his property for many years. When he actually pulled the trigger, though, he was quiet about it.

Now that he has gone public, I think it would be good to address some of the arguments he makes. This will be the first installment. First some background.

The Enemy Camp

I first learned of the lawsuit from a Facebook site Kent Hovind’s Worst Nightmare. (Nightmare). Nightmare is where you will find what Mary Tocco, Kent’s second and now estranged wife, calls the “obsessed party of internet fanatics who invest an impractical amount of time and focus, dedicated to revealing to the world their perception of Kent as a fraud and con-artist”. I have to say that I find Ms. Tocco’s evaluation of the “party” harsh, but fair.

Robert Baty alerted me to the filing. I think there are others involved but he seems to be the prime mover behind Nightmare. Kent has a tendency to refer to his critics, other than those who have deserted him, as atheists. Baty is not an atheist, but rather a Christian who has a problem with Young Earth Creationism.

Baty is a retired IRS agent and Kent maintains that Baty has been called out of retirement to “get Hovind”. I find that accusation highly implausible. My evaluation of Robert Baty is that you should never underestimate a cranky old man with a couple of obsessions, an internet connection and time on his hands when he is not watching the grandchildren.

Breaking The Story

At any rate Baty’s heads up me the opportunity to break the story, which seems to have prompted Kent to go public about the case starting around 2:01 in this video using my article as a jumping off point.

He referenced the story the next day in this video starting around 1:31

Maybe I will become a regular after the usual lead “We believe the Bible is true, that the Earth is about 6,000 years old, God made man and everything else in six days, dinosaurs lived with man and evolution is the dumbest and most dangerous religion in the history of the world”

Kent had a comment about the coverage “He’s been following my case and has written some good, some bad things about us” in the second video. Kent encourages his viewers to look at Forbes and keep an eye on it. It is amazing how often he and I are on the same wavelength.

The Verified Complaint

There are a couple of arguments that Kent has emphasized in the two videos, but the one that seems to have him in its grip the most is the “verified complaint”. In the first video, above Kent discusses it at great length with the legal brains behind the effort Paul John Hansen.

What is extraordinary to me is not so much the confidence that they have that they are right. It is the seeming total assurance that they will prevail. Kent explains the “verified complaint” argument with one of his sports analogies. Under Paul John Hansen Law there must be a “verified complaint” in order for a grand jury to consider an indictment.

They have asked the clerk of the court for a copy of the verified complaint. There is not one. So under Hansen law that means that even though federal prosecutors hit a home run with Kent’s 2006 conviction, long sentence and property forfeiture which was upheld on appeal, it was all for naught, because they failed to touch first base as they rounded it.

Asking Some Experts

I was a little skeptical about the “verified complaint” argument but everything I know about criminal procedure I learned from watching Law and Order. So I reached out to my legal brain trust and found two attorneys who would comment. One of them Peter Goldberger is on the record. The other one is not on the record but he is very credible so I will call him McCoy.

Mr. Goldberger’s law office focuses on “ appeals and other post-conviction aspects of federal criminal cases, including sentencing and Supreme Court petitions”. If, God forbid, I ever got in the sort of trouble that requires that sort of thing, I would call Mr. Goldberger a long time before I called Hansen. This is what he told me about the “verified complaint” argument.

Why The Argument Won’t Get In The Ballpark

The “verified complaint” argument was used, not in the most recent complaint, but in one that was filed back in November to reverse the conviction, which failed because the court no longer had jurisdiction. I covered that here. Mr. Goldberger first told me about some problems with the current complaint independent of the merits of the “verified complaint” argument.

There are procedural obstacles.

“ (1) Section 1983 and its jurisdictional provision (sec 1343 of title 28) apply to unconstitutional actions committed by state and local officials, not federal. His complaint is against federal government officials; (2) suits against federal judges and federal prosecutors for their official actions are barred by absolute immunity; (3) suits against federal law enforcement officers are barred by qualified immunity if they acted reasonably and in good faith; (4) no federal constitutional claim lies against a private criminal defense lawyer, who is considered a private actor not a state actor; (5) all claims based on the asserted invalidity of the criminal convictions are barred by collateral estoppel, as those convictions were or could have been challenged on appeal, and were affirmed; (6) any cause of action here is long-since barred by the statute of limitations.”

Why The Argument Would Strike Out

On the “verified complaint” argument, which most likely the court will never get to, Mr. Goldberger wrote:

“On the “verified complaint” question, the 2255 made two claims of this nature. One, that Hovind’s arrest violated the Fourth Amendment because the warrant was issued without probable cause. And two, that the indictment was invalid because it was not supported by a sworn complaint and affidavit as supposedly required by Fed.R.Crim.P. 9(a). 

The first claim is wrong because the warrant (as he acknowledges) was issued on the basis of the return of an indictment. An indictment cannot be issued except upon probable cause to believe that a federal crime has been committed. So that supports issuance of an arrest warrant, consistent with the Fourth Amendment’s probable cause requirement. “

“The second claim is based on a simple misreading of Rule 9. The Rule says that “The court must issue a warrant—or at the government’s request, a summons—for each defendant named in an indictment or named in an information if one or more affidavits accompanying the information establish probable cause to believe that an offense has been committed and that the defendant committed it.” The requirement of an affidavit establishing probable cause, as you can see, only applies when charges are brought by “information” (on the word of the U.S. Attorney) and not to cases prosecuted by indictment. This is for the precise reason that I already explained, that an indictment from a properly constituted grand jury (the normal way to bring federal felony charges, as stated in the Fifth Amendment) is conclusive evidence of probable cause.”

 “On top of which, a defect in the indictment or in the defendant’s arrest is not jurisdictional and does not defeat the validity of a conviction, and any lack of probable cause or procedural error at the indictment stage is rendered moot by the defendant’s subsequent conviction by a trial jury, based on proof beyond a reasonable doubt, and affirmed on appeal.”

On Grand Juries

I asked Mr. Goldberger to listen to the first video. Here is his reaction:

“Against my better judgment, I listened. Perhaps I should also mention in addition to what I wrote last night that before returning an indictment, the grand jury hears witnesses under oath and receives evidence to establish the required probable cause. It then votes either to indict or to decline. The grand jury does not just “wake up some morning” and vote an indictment without basis under oath, as Hovind contends.”

McCoy

McCoy gave me a briefer answer that addresses it from a different angle.

“There does not have to be a verified complaint when a case goes to the grand jury. The grand jury can start an investigation (either nudge by the prosecutor which is how it normally starts or even started on the grand jury initiative)…. 

A complaint is something filed with the court. A verified complaint simply has to have someone verify the complaint under oath. Some federal criminal cases may initially be commenced by complaint which must be verified, but all felony crimes ( require that the grand jury make the charge in an indictment. …. 

Hovind’s criminal case was prosecuted by a grand jury indictment which, as noted above, does not require a verified complaint.”

I plan on doing a piece on other aspects of the complaint and Hansen’s overarching legal views, but I figured I would address “verified complaint” argument first.

Important Distinction

I spoke with both Kent Hovind and his long-term friend and advisor, Ernie Land. They indicated that Paul Hansen would be calling me, but I have not yet heard from him. Much as I enjoy hearing his voice, I did not get anything from Kent that I did not already have from his videos other than an even stronger sense of his belief in his cause.

Ernie emphasized an important distinction. The other plaintiff in the complaint is Paul John Hansen, as trustee for Creation Science Evangelism (CSE), a non-statutory trust. I will call that Old CSE. Old CSE is the entity involved in the original Dinosaur Adventure Land in Pensacola. Old CSE was found to be an alter-ego of Kent Hovind, which is the source of much of his troubles.

The new Dinosaur Adventure Land in Repton AL is owned by Creation Science Evangelism Ministries Inc, which I will call New CSE. New CSE is a corporation recognized from inception by the IRS as a 501(c)(3) organization and more recently recognized as a church. There is also a separate for profit corporation for the store and other profit making aspects of the operation.

New CSE On The Straight And Narrow

Ernie tells me that New CSE has a conventional tax attorney making sure that they are compliant with tax laws as they are recognized in the mainstream. They also make sure that Kent is personally compliant with his 1040 obligation by some sort of power of attorney method that does not require Kent to compromise his principles.

According to Ernie, New CSE is in no way involved in the litigation. I got the impression that the New CSE board would be happier if Kent stayed with the creation message and exposing the lies of evolution. One thing I have learned about Kent over the years though is that he is his own guy and pretty much considers himself accountable to his heavenly father and no one else.