DRUG CHALLENGES LOOM AFTER CURRENT CASE ENDS

Carlos Hernandez isn't the only drug defendant investigated by Shawnee
County sheriff's narcotics officers to ask a judge to strike down his
case.

Two defense attorneys recently said three clients want to challenge
their drug convictions based on the disappearance of drugs in other
cases investigated by sheriff's narcotics officers.

And Wednesday, Abdelmonim E. Yousif, 42, Topeka, sought to reverse his
convictions for cocaine trafficking.

The evidentiary hearing in the Hernandez case has focused on former
Cpl. Timothy P. Oblander's cocaine use, cover-up of Oblander's drug
use, and allegations of corruption in the sheriff's department, theft
of drug evidence and tainting of other drug evidence.

Oblander resigned on Feb. 26, three days before admitting he had been
treated for a cocaine problem and not just alcoholism as he earlier
contended.

Hernandez, who is charged with a misdemeanor count of marijuana
possession and a felony drug tax stamp violation, is asking a judge to
dismiss the case based on contentions there was misconduct by deputies
and a break in the chain of evidence in the marijuana confiscated in
his case.

On Dec. 16, District Judge Thomas Conklin met with about 20 defense
attorneys to mull over how to best handle criminal cases potentially
impacted by missing or tainted drug evidence in the sheriff's custody.

At that meeting, Conklin told defense attorneys to scan their files of
clients from Jan. 1, 1994, to July 1996 to find cases investigated by
sheriff's narcotics officers, then contact the district attorney's
office to request more records.

Other defense attorneys said they either hadn't found any clients
investigated by the sheriff's narcotics investigators specified in a
Kansas Bureau of Investigation report, or the clients didn't want to
seek to overturn the convictions.

Defense attorney Matt Works said he expects to file requests in
several weeks seeking to overturn the drug convictions of two men.

Works said he would try to examine a list specifying which deputy
investigated which drug case during the time frame. Sheriff Dave
Meneley compiled the list of cases and investigators after District
Judge Eric Rosen ordered him to do so.

In the Yousif case, he pleaded no contest and was convicted of cocaine
trafficking charges when part or all of the drug evidence was missing,
according to Shawnee County District Court records and the KBI report.

Yousif didn't knowingly enter his no contest pleas on Aug. 30, 1996,
according to Robert Eskildsen, assistant public defender. He was
unaware that alleged evidence in the case was missing or stolen, even
though that was known to the sheriff's department, the KBI and the
district attorney's office, according Eskildsen.

It isn't an attorney's choice whether to reopen a case that already
has been resolved, lawyer Bruce Harrington said.

"I would have no legal or ethical responsibility to pursue it without
their consent," he explained. "I could not pursue it without the
client's knowledge."

In 1997, Harrington defended a client charged with cocaine
trafficking, who told him 75 percent of the cocaine confiscated from
him was missing compared to the amount testified to in court by a
sheriff's narcotics officer.

An attorney has an ethical obligation to contact a client who has been
convicted of an offense to tell him or her a past conviction possibly
could be overturned because of newly discovered developments,

Harrington said, but the client has to decide whether to pursue a remedy.

In the survey of Topeka attorneys, several said they hadn't found any
clients with cases investigated by deputies during the 218E2-year time
frame.

At least one private attorney is waiting to see whether charges
against Hernandez will be dismissed before he researches whether any
of his past clients might be impacted.

"I don't want to spend two to three weeks in court doing what
(Hernandez' public defenders) are doing," attorney Eric Kjorlie said.
"My clients don't have the money to do it."

At $125 an hour for an attorney, spending two to three weeks in court
for 10 to 12 hours a day in attorney's fees would cost $12,500 to
$22,500, according to Kjorlie's figures.

Not all clients want to revisit their drug cases, Harrington
said.

Harrington said he had found two clients who had been convicted of
offenses investigated by the sheriff's department, but the two didn't
want to try to overturn the convictions. Each client decided the
convictions were water under the bridge, he said.

"It's not my choice," he said. "It's their case, their life, their
criminal record. They don't want to retread those waters."

In Kansas and federal courts, offenders are sentenced to prison
according to the severity of the crime and the number of past
convictions.

"Criminal history is a very important component of how long someone
will serve," Kjorlie said.

It can mean the difference between presumptive probation for someone
with a previously clean record and presumptive prison for someone with
one or more earlier convictions, Kjorlie said.