MOST DRUG ARRESTS DON'T GET HARD TIME, REVIEW SHOWS

HUNTINGTON -- Almost every time Aaron Higginbotham sees someone
arrested for drug charges, he said it seems that person gets right
back out of jail.

A review of 2004 Cabell County court records and drug arrests gives
some credence to his concerns.

Although the complexities of the court system make it difficult to
find and follow every drug case, a review of a year's worth of the
most common drug trafficking charge shows that only 11 percent of the
cases have so far received more than a year behind bars. At least
another 18 percent of the cases are still awaiting court action, so
the number receiving serious prison time could rise over time.

But this snapshot of the judicial process also showed the great
majority of the felony arrests are either dismissed in magistrate
court, pleaded down to misdemeanor charges or resulted in a sentence
of fines or less than year.

"It's prosecutors and magistrate courts," Higginbotham said during a
recent Huntington City Hall community forum. "You don't have enough
felons (behind bars). That's your problem. They are getting out in
three to four months, because you know why? They are ratting people
out. You think you're going to get a bigger, bigger, bigger fish.
You're never going to get a bigger fish. The bigger fish are already here."

This sample of drug arrests came as Huntington and the Tri-State
began experiencing a rise in drug trafficking and violence that many
feel culminated with the shooting deaths of four area teenagers in
May 2005 along Charleston Avenue. The light penalties and short jail
stays also coincided with area police layoffs and financial struggles
to pay regional jail expenses.

Some local officials, including Cabell County Prosecutor Chris
Chiles, say the newspaper's review doesn't tell the whole story,
because many of the cases dismissed in magistrate court are
eventually presented to future grand juries and more of those cases
likely will result in prison time.

There is little state or national data tracking how many individual
drug arrests result in jail time. So it is difficult to know how
typical the local situation may be, although some media reports show
similar trends in other areas. A Kentucky newspaper report showed
courts in 25 counties granted probation in 60 percent of drug cases,
and another study showed courts in New Hampshire granted probation
about 67 percent of the time.

But regardless of how local drug prosecution has gone in past years,
members from all facets of the criminal justice systemsay they
redoubled their efforts in 2005. They contend more people have been
arrested with better coordination and training. Although it's too
early to tell how those cases will play out, officials expect to see
more people going to jail in the future.

Review of cases

The Herald-Dispatch specifically followed 253 arrests charging
defendants with felony possession of a controlled substance with
intent to deliver, which were filed in Cabell County Magistrate
Court. (There were 11 additional cases, where complete files were not
available.)

The "possession with intent" charge is the most common trafficking
offense local police levy against drug defendants, and magistrate
court was chosen because it's the first court visited by most
defendants. The year 2004 was selected to give the judicial system
ample time to dispose of each case, but at least 45 of the cases were
still awaiting indictment, trial or sentencing, as of Thursday.

Most of Cabell County's drug cases involved suspected cocaine or
crack cocaine representing 122 cases, or 48.2 percent, of the total
cases reviewed.

When final dispositions were analyzed, the review found that 29
cases, or 11 percent, of 2004's arrests resulted in a sentence of one
or more years behind bars.

In fact, the review discovered that 137, or 54 percent, of the
original felony charges were dismissed in magistrate court with most
being pleaded down to misdemeanor charges.

Explanations

Chiles argues that it's misleading to just look at the number of
people arrested, and a more accurate picture comes from an
examination of the people who are indicted. In a December op-ed
published by The Herald-Dispatch, Chiles reported an overall
conviction rate of 90 percent and a felony conviction rate of 82
percent, when considering cases indicted by Cabell County grand juries in 2004.

As a matter of strategy, Chiles said his office will dismiss drug
charges against individuals in magistrate court with intentions of
presenting the same case to a future grand jury.

The newspaper's review found at least 14 instances noting such action
within court documents, and Chiles said there are and will be many
more examples since state law sets forth no statue of limitations for
the crimes.

"All sorts of things go on that we're not going to put in the records
as to why the case gets dismissed for obvious reasons," Chiles said,
including the defendant providing police with additional information.

But not everyone agrees with that approach.

Gregory D. Lee, a retired supervisory agent of the federal Drug
Enforcement Agency turned author, said he believes prosecutors should
use strong evidence to get convictions first, and then elicit the
convict's assistance.

Lee said the strategy of dismissing charges with the possibility of
indicting at a later date, in his mind, decreases the amount of
initiative an arrestee has to cooperate.

"A pending sentence means the guy already has his head on the
chopping block, and it's a matter of where they are going to chop,"
Lee said. "(The convicted felon) will be hustling to expand the
existing investigation he is involved in, or future investigations,
but at least he realizes his sentence is going to be directly
correlated to the cooperation he has shown."

On Thursday, Gov. Joe Manchin also spoke out about being tougher when
drug defendants first come to court.

"The bottom line is this: Can we be so tough on first-time drug
offenders that they never push it or abuse it again?" he said.
"That's what we're aiming to accomplish. But we have to have
magistrate and circuit judges be tough with us and give law
enforcement the adequate resources."

Protecting the informant

The newspaper's review didn't come across any jury verdicts, as most
defendants simply pleaded guilty.

Chiles chalked that up to good police work, and the desire to protect
the informant's identity. He said that desire has led to some felony
charges being dismissed in magistrate court.

Many officials have said it should be no surprise to the public that
most informants are not Sunday School teachers.

Sgt. Mike Clark, of the Cabell Sheriff's Department, said protecting
that person's identity is a real concern for him and many police officers.

"I'm not going to put someone's life in danger for a hearing," he
said. "I won't do it. What's more important? A life or convicting someone."

'Plea bargaining is a necessary evil'

The Herald-Dispatch review found 79 of the original 253 felony cases,
or 31.2 percent, had been reduced to misdemeanor charges. Chiles said
he does not believe that's too high of a percentage.

"We don't do it without the police asking us to," he said. "The
police have certain ways they deal with things. Usually a uniformed
officer at 2 a.m. -- without the benefit of being able to call a
prosecutor or something -- they make a decision.

"Then when it comes to court, we sit down and we talk about it, and
decide whether or not it's appropriate to continue the charge as a
felony or plead it down," Chiles added.

The review found that 71 out of those 79 felony charges were reduced
in magistrate court, and again Chiles explained several factors play
into his office's decision as he described magistrate court as the
place the strong and weak cases are weeded out.

Chiles said the factors include the defendant's prior record, his or
her level of cooperation and whether or not that person actually had
the intent to deliver the drugs.

"Plea bargaining is a necessary evil," said Trooper First Class Mike
Parde of the West Virginia State Police. "Based on sheer volume, I
believe it would be impossible, absolutely impossible, for the Cabell
County Prosecutor's office and the Cabell County Circuit Court to
handle and take those types of cases to trial."

There were more than 1,400 felony cases filed during 2004 in magistrate court.

The review found a few cases were that dismissed with other types of
agreements.

For example, in one case, former Magistrate Johnny McCallister stated
the charges would be dismissed if the defendant stayed out of trouble
for 90 days and agreed to leave town.

Two agreements, granted by Magistrate Betty Wolford, dismissed
charges since the defendant had cooperated and hadn't sold drugs
since the arrest. It said the charges would be re-filed if defendant
got in trouble again.

"If (prosecutors and police officer) agree to something, then most of
the magistrate go along as long as it's reasonable," she said.
"(Police and prosecutors) know more on actually what happened in the case."

Robert E. Wilkinson, chief public defender for Cabell County, said
his office represents about 80 percent to 90 percent the drug
defendants, and he said often prosecutors encounter various "speed
bumps" that increase the possibility of plea bargains.

"We're very effective," he said. "You're going to have to have some
type of argument that you can make to get it dropped down to a
misdemeanor. The state is going to have to have some problem with evidence."

Chiles and Wilkinson both offered the example that an officer will
pull over a car, or go into a house, where he finds some portion of a
drug, but many possible owners. At that point, both men said the
officer will likely arrest everyone in sight of the drug.

"The warrant basically is a probable cause warrant," Wilkinson said.
"I have probable cause to believe this crime was committed, and that
this person did it. Then it comes in front of the prosecutor, and it
isn't everything the policeman thought it was, or was hoping it might be."

Still both men, Chiles and Wilkinson, praised efforts of the area law
enforcement agencies and declined to say if more training is needed.

Preparing for court

Preparation is also key to winning cases and getting plea bargains in
magistrate court. Wilkinson said he believes the local prosecutor's
office is overrun with cases.

"It's hard to make sweeping generalizations on it," he said. "There
are a couple of dynamics that go on. We come in better prepared than
the prosecutors all the time, or virtually all the time. Usually
we've talked to our client. We have files on everybody."

Chiles and his assistant prosecutor Sean Hammers dismissed
Wilkinson's thoughts.

"With our volume of cases we're not able to look at every criminal
complaint," he said. "That's absolutely true, but you know what, it's
not very hard as a prosecutor, in deciding whether or not to have a
preliminary hearing, to be able to take that warrant and talk to that
officer for five minutes and decide whether or not it's appropriate
to go forward with a preliminary hearing. It's just not that
difficult, especially not a drug case."