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Friday, November 15, 2013 - 12:13pm

Analyzing The ‘But I Didn’t Mean To’ Defense

You didn’t see the "no parking" sign and mistakenly left your car in a tow-away zone. Or you didn’t know you needed to pay taxes for freelance work you performed.

Mistakes -- inadvertent errors. Right?

This week, a state Senator tried to add one more to that list of innocent mistakes: allegedly filing fraudulent expense reports. And while a state Senate ethics committee accepted that reasoning from Senator Don Balfour last year, that was before his indictment on a combined 18 counts of making a false certificate, theft by taking and making a false statement.

On Wednesday, that argument didn’t get him very far.

“The expense errors that were submitted were inadvertent. Inadvertent! Therefore unintentional,” Balfour’s attorney, Ken Hodges, told a panel of three GOP lawmakers.

A few hours later, Gov. Nathan Deal suspended Balfour, the state Senate’s longest-serving Republican. And in the words of Atlanta criminal defense attorney Doug Rohan, it might be because that defense doesn’t wash.

Rohan says there’s a class of offenses that require criminal intent. And then there are the crimes Balfour’s been charged with.

“If you’re signing your name to a document purporting that those documents are correct and accurate, you can’t say it’s inadvertent,” he said in a telephone interview. “You can’t say you’ve mistakenly submitted documentation for reimbursement.”

Rohan says it’s especially true because the charges include instances of double-billing. In those cases, Balfour allegedly submitted expense reports to both the state and his employer, the Waffle House.

“It’s not a mistake that you then obtain reimbursement from both your employer and the taxpayers of Georgia,” he said. “You are intentionally submitting reimbursement forms to both agencies for reimbursement.”

Balfour is one of two legislators under criminal indictment. By comparison, Democratic lawmaker, Rep. Tyrone Brooks, is accused of embezzling roughly $1 million from a charity he runs. But he’s kept his seat while awaiting trial.

Some Capitol observers say Balfour may be paying for more than just the indictment.

“Don Balfour was a very powerful Senator for a long time as chairman of the rules committee,” said Tom Crawford, editor of the Georgia Report, in an interview. “He was known as being arrogant, somewhat pushy, someone who would get his way no matter what. And he created a lot of enemies that way.”

As chairman of the rules committee, Balfour decided what legislation made it to the Senate floor.

Crawford says with next year’s election nearing, GOP lawmakers may want to keep their distance from someone facing charges. It remains to be seen if voters have stood behind him. His attorney, Hodges, said they overwhelmingly re-elected him in 2012.

But now that Balfour has been indicted, Charles Bullock with the University of Georgia said voters might feel differently.

“To be indicted doesn’t mean you’re guilty of anything,” he said. “There’s the old joke among lawyers that you can indict a ham sandwich. But I think it does probably registers with many voters a certain seriousness to the charges that in the past they might not have given much credence to.”

Balfour still faces arraignment in Fulton County Superior Court, most likely by the end of the year.

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