COOPER ORDERS DRUG USE INQUIRY

State Bureau Of Investigation Looks Into Allegations Against Former Courts
Administrator John Kennedy

Kennedy Has Not Been Charged And Denies Using Drugs.

State authorities are investigating former top courts administrator John
Kennedy's suspected cocaine use in his office. "The attorney general has
directed the [State Bureau of Investigation] to investigate the matter,"
Noelle Talley, spokeswoman for Attorney General Roy Cooper, said Wednesday.
"He felt like it needs to be looked into."

Talley would not elaborate on the SBI's assignment or Cooper's reasons for it.

The bureau, which reports to the attorney general, helps local law
enforcement identify criminals, analyze evidence and prepare it for use in
court. It also has the power to investigate possible crimes on its own.

Kennedy was director of the state Administrative Office of the Courts until
he resigned July 24.

His boss, Chief Justice Beverly Lake Jr., said two agency employees last
month reported to him that they saw Kennedy hide things on his desk. Lake
had an aide ask Wake Sheriff Donnie Harrison to search Kennedy's corner
office in the state Justice Building in downtown Raleigh on July 22. The
search turned up "trace amounts of cocaine," Lake said.

Lake issued a memorandum Tuesday describing the circumstances of Kennedy's
abrupt departure. It said Harrison's search corroborated "information about
possible cocaine use" by Kennedy.

Lake demanded Kennedy's resignation July 23, and Kennedy resigned the next day.

Kennedy, who has not been charged with a crime, said this week that he has
never used cocaine. He could not be reached Wednesday for comment.

Harrison said that he saw something suspicious in Kennedy's office but
wouldn't say what.

DA: No possible case

Wake County District Attorney Colon Willoughby said Wednesday that he
decided not to investigate Kennedy on suspicion of cocaine possession
largely because there wasn't any material he could have arranged to have
tested.

"There was nothing collected or gathered to be tested," Willoughby said in
an interview. "I was under the impression that there was nothing that could
be collected and sent off for testing. I'm sure the sheriff would have
collected it if he could have."

Therefore, he said, he had no basis to charge Kennedy with a crime or to
search his car or home.

"I tried to make the decision based on the evidence and the facts as I
understood them to be," he said. "I didn't think there was any prosecutable
case."

Willoughby, a friend of Kennedy's, worked closely with him for 16 years at
the Wake County Courthouse. Before going to work for the state courts
office three years ago, Kennedy was Wake County's elected clerk of courts.

Willoughby said their friendship didn't affect his judgment.

"I prosecuted [Raleigh lawyer] Jim Blackburn, who was a friend of mine," he
said. "I prosecuted Meg Scott Phipps [the former state agriculture
commissioner], who was a friend. I try to do my job based on the facts and
the evidence, not based on who people are."

No test, no conviction

Under state court rulings, a small amount of drug residue is enough to
convict someone of cocaine possession, a felony.

But there has to be enough residue to permit chemical testing to determine
what it is.

"A measurable trace amount -- residue -- is enough," said Bob Farb, an
expert on criminal law at UNC-Chapel Hill's Institute of Government. "If
proved, it can be sufficient. Ordinarily, you're going to have to have a
lab test."

Farb spoke generally, and not about Kennedy's case.

Several criminal defense lawyers said they didn't think Willoughby could
convict anyone on the evidence described in Kennedy's case.

George Hughes, a retired Wake defense lawyer who works as a Brunswick
County magistrate, said he has represented 25 to 30 clients during the past
nine years who were charged with cocaine possession based on testable
residue or trace amounts.

"My first thought was: What did the dog smell?" he said. "If there's not
enough to test or analyze, I don't know how you call it cocaine. But I'm
not the sheriff, and I'm not the Labrador retriever."

Smithfield lawyer Jack O'Hale said that although he has had clients charged
with felony drug possession based on trace amounts, none were convicted
when the police didn't have enough for testing.

Before trial, a prosecutor would have the substance tested at a state crime
lab to confirm it was an illegal drug, he said. The defendant also could
conduct his own testing.

"I don't know a district attorney anywhere, even if it was Joe the rag man,
who would take that case to trial," O'Hale said. "Without having facts that
are provable beyond a reasonable doubt, an ethical district attorney is not
about to prosecute that case.

"If you're not confident that you possess substantial evidence that would
warrant a conviction, then you have no business charging them. Because the
power to indict is the power to destroy."

Doug Parsons, a veteran defense lawyer from Clinton and a former state and
federal prosecutor, said court rulings have said that drug dog indications
alone are not enough evidence to support a conviction, because they can be
unreliable.

"None of us know what was or was not found," he said. "Based on what I read
in the newspaper, it would not be prosecuted. Unquantifiable amounts of
drugs don't have a lot of jury appeal."