ON HOLD BEHIND BARS

Defense Lawyers Say Clients Being Held Without Counsel And Without
Charges

One question kept swirling through John Van Norden Barker III's mind
while he was being held in the Knox County Detenton Facility last
month: "Does anybody know I'm here?"

It was a good question after Knox County Sheriff's Department officers
took Barker "into custody" following a traffic stop that allegedly
turned up some marijuana.

But Barker, whose only previous brush with the law was a public
intoxication charge, said he wasn't placed under arrest or charged
with anything that night.

No one read him his rights or took him before a judge, and he wasn't
allowed to call his mother or a lawyer despite his pleas to do so.

Instead, from the night of Nov. 4 until the early morning hours of
Nov. 6, Barker, 20, was held alone while he contends a Knox County
officer tried to get him to provide information about drug
trafficking.

"I didn't think anybody knew I was there," Barker said. "I was
thinking my mom and dad and my girlfriend are going to think I'm dead."

According to court records, Barker was finally charged with possession
of marijuana with intent to distribute around 8:15 p.m. on Nov. 5 --
nearly 24 hours after he was picked up. After appearing before a
judge, he was released on bond on the morning of Nov. 6.

If his experience of being held without being arrested or charged or
allowed to call his family or a lawyer sounds like an isolated
incident -- or even un-American -- think again. It happens all the
time in the Knox County Jail.

Up To 72 Hours

Defense lawyers contend that some Sheriff's Department detectives for
the past several weeks have been holding people in the jail for 24 to
72 hours without charging them, advising them of their rights or
allowing them to contact family members or a lawyer.

Lawyers approached for this story told of at least a dozen people who
have been held for considerable periods of time without being charged
or taken before a judge.

Sometimes they were held in the downtown jail in a small visiting
booth with no toilet or mattress. During that time the detectives
allegedly urged them to cooperate or to make undercover drug buys in
return for reduced charges or no charges at all.

The practice infuriates defense lawyers who argue that American
citizens just can't be picked up and held without access to an
attorney or being allowed to contact someone.

"You see a pattern where people who are young and unsophisticated and
powerless are abused by this type of technique," said Gregory P.
Isaacs, a Knoxville defense lawyer.

But the Sheriff's Department contends the practice of holding people
is perfectly legal.

"The first thing I would want to stipulate is that the actions of the
narcotics staff are within the limits of the laws," said Chief Deputy
Dwight Van de Vate, although the detectives involved aren't just in
the narcotics division.

Van de Vate said earlier this month it is the department's position
that it's legal under certain circumstances to hold someone for up to
72 hours without filing charges or letting them contact anyone.

"Yes, as long as it is pursuant to an active criminal investigation,"
said Van de Vate who later added, "The law affords certain standards
in these instances that are intended to protect the integrity of the
investigation."

Asked if he didn't think most people might be alarmed to learn someone
can be taken into custody and not allowed access to anyone for that
long, Van de Vate indicated that investigators aren't dealing with
saints here.

"The average citizen will go through their entire lifetime having
virtually no-contact at all with the law enforcement community," he
said. "The law provides an extraordinary system of checks and balances
intended to prevent innocent people from getting into trouble."

That position, however, troubles defense lawyers, who point out that
in the United States everyone is presumed to be innocent until proven
guilty.

"That is absolutely preposterous," said Knoxville defense lawyer
Herbert S. Moncier. "Evidently Mr. Van de Vate and Sheriff (Tim)
Hutchison have set themselves up to determine who is guilty, and
whoever they determine is guilty, they just simply deny them any due
process of law in Knox County."

'No-Contact Holds'

Barker said he was on his way to his girlfriend's house when he pulled
over at a Sutherland Avenue car wash to let a passenger make a call.
When he did, he said two Sheriff's Department cars containing three
deputies, including Sgt. Thomas Finch, swooped down on him.

A warrant filed by Finch --who was suspended for 30 days in 1994 for
trying to cover up a jailer's beating of a handcuffed prisoner --
claims Barker was stopped for going five miles over the speed limit on
Sutherland. Barker contends he wasn't even moving when the officers
showed up.

According to the warrants, the officers discovered Barker had a
revoked license -- something Barker disputes -- and they found more
than three ounces of marijuana. He was taken into custody but was not
arrested or charged.

"I knew something was definitely wrong," Barker said.

He said the officers also seized the car -- which belonged to his
mother --and took $6 from him, then jested that they didn't want to
take his change.

"It was like a big joke and game to them," he said. "They were all
sitting there laughing and giving each other high fives."

Barker said he was taken to the detention facility on Maloneyville
Road and placed alone in a cell but was not advised of his rights or
even told whether charges would be lodged against him. He said he
asked jailers repeatedly to let him make a telephone call but was told
he couldn't because he was on a "no-contact hold."

The next afternoon, on Friday, he said he was taken to meet Finch in a
room. He said he asked for a lawyer.

"He (Finch) said you may not even need a lawyer if you just work with
me,' Barker recalled. "He said I may be able to get all the charges
dropped if I helped get him the big man."

At the time there were no charges, and Barker said he didn't know any
"big man."

A call seeking comment from Finch elicited a statement from Sgt.
Robert Manges that all questions were being referred to Van de Vate.
Manges, who has admitted lying to secure an arrest warrant for a
fictitious person, has been forbidden by General Sessions Court judges
from obtaining any warrants unless supported by a prosecutor.

Finch's alleged action troubles lawyers, who say that if you are in
custody, then questioning has to stop if you ask for an attorney.

"They have an absolute right to counsel at that point," said David
Eldridge, a member of the city's most highly regarded criminal defense
firm, Ritchie, Fels & Dillard. "They have a right to be free from any
further questioning until they have a chance to consult an attorney."

It's not just defense lawyers who feel that way.

"If the person being held insisted on talking to a lawyer, I think it
would be prudent for the authorities to let them talk to a lawyer,"
said Knox County District Attorney General Randy Nichols.

As to the argument that a person isn't entitled to an attorney unless
they are under "arrest," Tennessee law basically defines arrest as the
loss of liberty.

Van de Vate flatly denies that any Knox County detective would
continue to question someone after they have asked for an attorney. He
said officers know that would be a violation of a defendant's rights.

"There is absolutely no merit in this allegation whatsoever," Van de
Vate said in a Dec. 21 letter responding to questions for this story.

In that letter Van de Vate also wrote that Barker "was held for twelve
hours" prior to being charged and that "Officer Finch held Barker for
investigative purposes in order to determine which of the two
individuals in the car to prosecute for the drugs."

According to warrants and bond papers, however, Barker was stopped at
8:50 p.m. on Nov. 4 and not charged until 8:15 p.m. on Nov. 5 --
nearly 24 hours after he was taken into custody. The bond papers are
stamped at 4:55 a.m. on Nov. 6.

Barker said Finch asked him to sign a paper that would acknowledge he
had talked to the officer. Barker said Finch indicated if he signed
the paper, he'd be allowed to make a phone call.

Barker said the paper turned out to be a waiver of his right to an
attorney, but Barker didn't care because he just wanted to call his
mother. He said he didn't get to make the call and spent the rest of
the day and night in jail.

A Lawyer's Frustration

What Barker didn't know at the time was that his mother had learned he
was in jail and had hired Knoxville lawyer Wesley Baker to represent
him. Baker subsequently contacted jail officials and asked to see
Barker, but they refused. When Baker persisted, he found himself
talking with Sgt. Manges.

"He (Manges) said we have a 'no-contact hold' on him (Barker)," Baker
said. "And I said he's got a right to talk to his lawyer."

Still, Baker was not allowed to see Barker. He spent Friday afternoon
and evening trying to find a judge to get an order freeing his client
from jail. Barker finally was released on Saturday morning.

"This is what they are doing (at the Sheriff's Department)," Baker
said. "They are saying if they haven't charged him that he doesn't
have the right to an attorney."

Baker doesn't buy into the argument that people being held don't have
rights because they haven't been formally arrested.

"I think if you can't leave, you have a right to an attorney," he
said. "He's incarcerated. He's in jail."

Disappearing Into Jail

Some lawyers say Barker was lucky because at least someone knew he was
in jail.

Knoxville lawyer Russ Greene said a client he was already representing
on a drug charge was picked up Dec. 13 after deputies responded to a
disturbance call at the man's residence and allegedly discovered drugs
there.

For the next three days Greene tried to find the man but was told
initially that his client wasn't in custody. Later he was told the man
had apparently made bond. Greene couldn't find any paperwork, but he
thought it might have been delayed.

On Dec. 15 he told his client's mother, 'You might as well face it,
he's gone. Evidently someone has made his bond, and he's skipped town."

As it turned out, Greene's client hadn't even left the City County
Building.

"Thursday morning I came down here," Greene said, "and (another
lawyer) stopped me and said, 'There's some guy downstairs wants to see
you, says he's your client.' So I go tearing down there ... and sure
enough, there he is in Booth 6."

Booth 6 is a tiny visiting room in the Knox County Jail furnished only
with a metal stool bolted onto the floor. Greene's client said he had
been there most of the three days.

The client said deputies had placed him on a "no-contact" hold,
telling them he was being held "for investigation." He ultimately
decided to cooperate with them and make some undercover drug buys.

Greene said: "If you've seen that booth down there, that's horrendous.
I can't imagine putting an animal down there, much less a human being.
But this happens all the time."

Van de Vate said it would be unusual for jailers to deny that someone
being held in jail was actually there.

"It is not the policy of the department to deliberately avoid
responding to an inquiry regarding the status of a prisoner," he said.

But without going into detail, he also said there is a distinction
between "individuals incarcerated in the jail as inmates subject to
the normal intake procedures associated with arrest and those persons
who are being held pursuant to investigative detention."

Another defense attorney, Mike Whalen, has a story similar to Baker's.
He said he was visiting a client in one of the booths when a man in a
neighboring booth asked if he was a lawyer. When Whalen said he was,
the man -- Baron Walden Henderson, 23 -- asked for help in getting out
of jail.

"He (Henderson) said, 'I've been in this room for over 24 hours and
they say are going to keep me here for 72 hours,'" Whalen said.

Henderson, who has been charged with two counts of aggravated burglary
and with being a fugitive from justice, said he was picked up on the
night of Nov. 22 but was not arrested or charged with anything

"They placed me in handcuffs, and they said you are being detained
under investigation," Henderson recalled.

He said he spent the next two days in the tiny booth, sleeping on the
floor. He said he asked for a Bible and some books and was denied both.

Van de Vate wrote that Henderson is a fugitive from Florida "suspected
in a string of bank and ATM burglaries from Florida to Tennessee." He
wrote that Henderson apparently was held for 24 hours after his
apprehension before being charged.

According to court documents Henderson was in jail by 6:18 p.m. on
Nov. 24 and the two burglary warrants were sworn out around 8 a.m.
Nov. 25. There is no documentation in court records to indicate
Henderson was jailed on Nov. 22.

Henderson said he was taken to see detectives twice.

"They said, 'Are you going to talk to us?' and I said, 'Can I have an
attorney present?' And they said, 'Take (him) back to the booth.'"

The conversation between Henderson and defense attorney Whalen was
brief. Both men said that as soon as they started talking, two jailers
burst into the room and accused Whalen of soliciting business and said
he couldn't talk to Henderson.

Whalen didn't take that very well.

He shot back, "This man has a right to talk to a lawyer, and the man
wants to talk to a lawyer."

Henderson recalls that he told Whalen, 'It's all right, man. I'll talk
to you later."

What happened angers Knoxville lawyer Bruce Poston, who was later
appointed to represent Henderson.

"They can't disappear off the face of the Earth for all intents and
purposes," Poston said. "We don't do that in this country."

No Recourse

Defense lawyers said there is apparently little they can do about the
extended periods that people are being held without charge.
Investigators apparently aren't seeking to get statements under those
conditions, an action that could be attacked in court if a defendant
were denied a lawyer. Instead, the defense lawyers say, detectives are
holding people to compel them to cooperate.

But Van de Vate said: "That's not true at all. That's essentially
alleging (the holds are used to force people to cooperate), and that
simply isn't the case. And it shouldn't be overlooked that these are
persons who have been involved in a criminal activity."

He said officers know everything they do is going to be scrutinized
and that if they violate the rules, they are going to lose in court.

"Now if criminals and defense lawyers don't like the rules," said Van
de Vate, "they need to take their complaints to the
Legislature."

In his letter Van de Vate noted: "Of all the things that call the
credibility of these defendants into question, none is more striking
than the fact that none of the aforementioned have lodged any form of
official complaint in any venue whatsoever."

Most of the lawyers contacted for this story, however, said few of
their clients can afford to challenge the holds.

Whalen, for example, notes that when he and Henderson talked,
Henderson hadn't been charged and it wasn't clear if he was going to
be, particularly if he decided to cooperate.

"He can't stand up for himself," Whalen said. "I can't stand up for
him, either. If I stir the pot, maybe he gets charged."

Sometimes someone is held and never charged.

Joey Kent, 19, who is represented by Whalen, said he was held for
roughly 30 hours after a traffic stop in November but not charged with
anything.

That didn't stop sheriff's deputies from seizing his car and allegedly
pressuring him to make undercover drug buys for them.

Said Kent: "I was just there for questioning, they said. I asked a couple
of times (for a phone call), and they said, 'No, you ain't getting no phone
calls.'"

Kent is serving 18 months on probation for a drug conviction, but he
hasn't been in any trouble since that conviction. He said he has a
warehouse job that's kept him at work 12 hours a day during the
holiday season.

"I haven't done nothing, man," he said. "All I do is work and sleep.
I'm trying ... to get my life situated. I'm not trying to get sent to
prison."

He said during his incarceration Lt. Fred Ludwig, a longtime Sheriff's
Department deputy, asked him to make some undercover buys, but Kent
refused. In the meantime, his family was trying to find him, and he
says they were told he wasn't in jail. Kent said his sister was also
asked by Ludwig to make a drug buy to help out her brother, but she
also refused.

Kent said when he refused to do Ludwig's bidding, he was told he
wouldn't get his car back unless he cooperated. Although no charges
have been filed against Kent, his car still hasn't been returned.

Ludwig did not return a call seeking comment.

In his Dec. 21 letter Van de Vate wrote: "Defendant Joey Kent
confessed to stealing the wheels and tires from another car and then
placing them on his own. He was held in order to allow investigators
time to identify the rightful owner of the property."

But Kent -- who is not a defendant -- was not charged, according to
Van de Vate, because even with a confession someone can't be charged
"unless the owner is available to attest to his or her loss of property."

The letter doesn't say why the owner is unavailable to attest to the
theft. It also doesn't state how officers knew the wheels and tires
had allegedly been stolen if they didn't know who the rightful owner
was or if they hadn't attested to their alleged loss.

Your Rights

Can a law enforcement agency in Tennessee hold someone for 72 hours
without arresting them or taking them before a judge?

"I think the bottom line on the status of the law regarding the
question of how long an individual may be held without an appearance
before a magistrate, is that there is no bright line rule," defense
attorney Eldridge said.

Almost every lawyer questioned -- ranging from District Attorney
Nichols to Knox County District Public Defender Mark Stephens -- felt
that a person can be legally held for a certain period of time without
being charged or before a judge.

According to Eldridge, the so-called 72-hour rule arises from a 1944
Tennessee Supreme Court case, that said holding someone 72 hours
before taking them before a judge doesn't render a confession taken
during that time inadmissible.

But two recent decisions -- a 1991 United States Supreme Court
decision and a 1996 Tennessee Supreme Court decision -- strongly
suggest that a person should appear before a judge within 48 hours.

Both rulings forbid delaying a person's appearance before a judge "for
the purpose of gathering additional evidence to justify the arrest."

Perhaps more tellingly, Tennessee Rules of Criminal Procedure require
that an arrested person be "taken without unnecessary delay" before a
magistrate.

That language was specifically placed in the rules, according to a
1988 appeals court ruling, to discourage "the practice of some
officers of making arrests, locking arrestees in jail without benefit
of a (charging instrument), not bothering to take the accused before a
magistrate for days."

Whalen has a simpler take on the issue:

"If we start agreeing that people who look like they are guilty don't
have rights, you better check real careful in the mirror in the
morning to make sure you don't look guilty."

Van de Vate, however, maintains the actions of the Sheriff"s
Department in these instances have been legal.

"Again, although drug dealers and their attorneys may feel that the
law is unfair, the fact of the matter is that complaining about police
procedures is nothing more than making excuses for criminal conduct."