US KY: Series: Meth - A Rising Blight (Part 2F)

A Legal Roadblock

COURT RULING CONSTRICTS FIGHT

All Ingredients Needed To Convict

Caught in May 1999 outside a Somerset Wal-Mart with 288 "Equate"
antihistamine tablets - and most other ingredients to make meth - Ronald
Kotila seemed like he already had one foot in prison.

"I don't know of anyone who's ever had a cold that bad," prosecutor
Christopher Brown told a Pulaski Circuit Court jury seven months later, on
Jan.6, 2000, before it convicted Kotila of manufacturing methamphetamine
and other offenses.

The evidence included two lithium batteries, six cans of starting fluid,
one glass vial, a black cooking pot and three pieces of hose - as well as
more than two grams of the finished product - found in his maroon Buick.

Kotila was sentenced to 25 years in prison.

But by a 5-2 vote, the Kentucky Supreme Court reversed his conviction,
saying the law did not apply to him because he did not have a crucial
ingredient in the meth-making recipe: anhydrous ammonia.

The court ruled in June 2003 that the law creating a charge of
manufacturing meth meant defendants had to have all of "the chemicals or
equipment," not just some of them.

Prosecutors say the ruling has crippled their ability to punish people who
make meth - a felony that carries a 10-to-20-year sentence. The law still
allows them to be arrested if they are caught making the drug.

"It has really gutted the ability of law enforcement to prosecute these
cases," Hopkins County Commonwealth's Attorney David Massamore said.

After his conviction was reversed, Kotila, who is now 58, pleaded guilty to
possession of a meth precursor and possession of a controlled substance and
was sentenced to eight years in prison. He has since been released. He
could not be reached for comment.

Case's Aftermath

Ruling Defangs Crackdown, Hinders Investigations

At least a half-dozen other convictions have been reversed by the Court of
Appeals and Supreme Court because of the Kotila ruling, according to
records of those courts.

And prosecutors say that savvy meth manufacturers are exploiting the ruling
by not assembling the ingredients in one location until they are ready to
cook up a batch.

In a case from Logan County in November, the Supreme Court seemed to raise
the standard further still for prosecutors, noting that 10 specific pieces
of equipment are required to manufacture meth through one popular method.

Prosecutors say the Kotila ruling has eliminated the leverage they once had
on so-called "squirrels" - the runners who gather chemicals and equipment
and bring them back to the manufacturer.

"Before we were catching the squirrels and hammering them, and they would
many times give up the names of the cooks," Massamore said.

Justice William Graves of McCracken County, who sided with the majority in
the Kotila case, has since decided that such a "narrow and unreasonable
interpretation" had a "destructive effect on the enforcement of drug laws"
and did "violence to the concept of common sense."

But defense lawyers say the law as previously enforced was unreasonably
harsh, given that many defendants to whom it was applied were addicts.

Defense advocates also note that meth is the only drug in Kentucky for
which manufacturing is punished more severely than trafficking.

Kentucky also is the only state that allows a prosecution for manufacturing
meth based on mere possession of the chemicals and equipment necessary to
make it; other states penalize that as "attempted manufacturing," which
carries a lesser penalty.

In Indiana, the manufacturing process must have begun to sustain a
conviction for manufacturing meth, although runners caught with some of the
necessary chemicals may be charged with conspiring to make the drug, which
carries the same penalty, said Deputy Prosecutor Jeremy Mull, who
prosecutes drug cases in Clark County, Ind.

Other Options

States Lean On Makers' Intentions To Prosecute

Kentucky lawyers and some lawmakers say prosecutors have other
meth-fighting laws in their arsenal, including one enacted in 2002 -
possession of a meth precursor, a felony punishable by up to five years in
prison.

"The commonwealth's attorneys cry because of the Kotila case but they are
still indicting and convicting offenders," said Rep. Gross Lindsay,
D-Henderson.

As chairman of the House Judiciary Committee, Lindsay derailed a bill in
the last session that would have defined how many ingredients a defendant
has to possess to be convicted of manufacturing.

Lindsay and other legislators said they feared that law-abiding residents
might be charged under the proposed law because many of the things used to
make meth - including bowls and spoons - are common.

"I bet you have 10 of the items in your kitchen," he said.

Kentucky State Police spokesman Capt. Brad Bates said the Kotila ruling has
made life more difficult for police, but "the bad guys aren't getting away."

Gail Cook, Calloway County's top prosecutor and president of the Kentucky
Commonwealth's Attorneys Association, acknowledged that prosecutors have
found alternatives, such as charging defendants, if there are two or more,
with conspiring with others to manufacture meth.

They also say the Supreme Court has softened the impact of the ruling in a
couple of subsequent decisions. In May, for example, in a Henderson County
case, the court held that the lingering odor of anhydrous ammonia in a tank
is enough to prove that the defendant possessed it, even if there is no
longer any there.

Al Barber, a lawyer who has represented meth defendants, said that
manufacturing meth carries penalties too severe for a defendant who may
just be gathering ingredients for somebody else, and who is more than
likely addicted to the drug.

"The prisons are just full of people who are hooked on this insidious
stuff," Barber said.

At least some prosecutors hope the legislature will address what they call
the Kotila "loophole" in its session that starts next week.

Cook said the commonwealth's attorneys' association has drafted a proposed
bill that would define manufacture as possessing two ingredients with the
intent to make the drug.

Chris Gilligan, a spokesman for the state Justice Cabinet, said such a
change must be done cautiously because the ingredients in the recipe for
meth change so quickly.

"It is a problem that we want to fix and support fixing," said Gilligan,
adding, "We would rather get it right than get it quick and get it wrong."