HECHT APPEALING MARIJUANA REVERSAL

Case overturned based on sheriff's drug scandal.

For once, it is the prosecutor who is saying "prove it."

District Attorney Robert Hecht is trying to turn the table on a Topeka man
whose drug case was overturned as a result of scandal in the sheriff's office.

Normally, it is the burden of the prosecution to prove a defendant's guilt.
But in this case, Hecht essentially wants the defendant to show that the
drug scandal adversely affected his case.

Shawnee County District Judge Charles Andrews on April 6 overturned the
1995 convictions of Donato Lorenzo Stough, 32, on one count each of
possession of marijuana with intent to sell and unlawful use of a
communications facility. Four days later, Hecht filed notice that he was
appealing Andrews' decision to the Kansas Court of Appeals, which might not
hear the case until 2002.

Hecht said late last week he was appealing, in part, to question how long
someone convicted of a drug offense is entitled to have his conviction
overturned.

Hecht wants the high court to issue a ruling should similar cases arise in
the future.

Stough sought to overturn his convictions based on a May 11, 1999, decision
by District Judge Eric Rosen in the Carlos Hernandez case, in which the
judge dismissed drug charges against Hernandez based on the defendant's
claim that the chain of custody of marijuana evidence wasn't established
because of "outrageous" conduct.

The Hernandez case triggered a six-day evidentiary hearing concerning
evidence of cocaine use by former sheriff's Cpl. Timothy P. Oblander;
conflicting testimony about drug abuse, cocaine thefts and tampering of
drug evidence in the sheriff's office; and allegations of corruption in the
sheriff's office.

In his ruling, Rosen called the conduct of a small group in the sheriff's
office "outrageous," saying then-Sheriff Dave Meneley tried to cover up
illegal activities by demoting, transferring and promoting deputies.

Hecht said his appeal doesn't seek to reopen the Hernandez case and isn't a
challenge of Rosen's ruling, which Hecht called "correct" and "courageous."
But he said he was concerned people would construe the ruling as a "blanket
exoneration" for convictions that were decided before the Hernandez case.
Defendants at least should have to show evidence that the Hernandez ruling
adversely impacted their case, he said.

Hecht also is appealing the decision in the Stough case, he said, because
nothing shows it was affected by facts or circumstances leading to the
Hernandez decision.

Hecht also questioned whether the district court had jurisdiction over the
Stough case. Stough had completed his sentence and was no longer was under
the authority of the court.

Stough was at least the 10th drug defendant either to have his case
dismissed or convictions overturned because of the sheriff's office drug
scandal. An 11th defendant's case was dismissed when Oblander invoked the
Fifth Amendment when called to testify while a deputy.

Stough was charged in May 1995 with two counts of possession of marijuana
with intent to sell and one count each of attempted possession of marijuana
with intent to sell, conspiracy to possess cocaine, failure to pay the
Kansas drug tax and possession of drug paraphernalia, and 13 counts of
unlawful use of a communications facility.

Of the 18 felonies and one misdemeanor, Stough pleaded no contest on Dec.
8, 1995, to possessing marijuana with intent to sell. A judge placed him on
probation and ordered Stough to attend the Labette Correctional
Conservation Camp, a boot camp. On July 7, 1998, Stough completed probation
and had paid all fees.