DRUG CASES MIGHT BE THROWN OUT

MCKEE - Drug detectives with a federally funded task force began
investigations in Jackson County before the date a judge ruled they had
jurisdiction to do so, raising questions on whether a number of cases or
charges will be dismissed.

Defense attorneys in the other 10 counties in Operation UNITE's Cumberland
region could file similar challenges to the agency's authority, calling
scores of drug arrests into question.

"I do think there will be the same or similar challenges in those other
counties," said Sharon K. Allen, a McKee attorney who contested UNITE's
jurisdiction in Jackson County.

The issue is when UNITE'S multi-county task forces became effective. UNITE,
which stands for Unlawful Narcotics Investigation, Treatment and Education,
has three regional task forces that investigate street-level drug
trafficking in 29 counties in Eastern and south-central Kentucky.

How It Works

The detectives making undercover drug buys are employees of local police
and sheriff's departments who work for the task forces under what is called
an interlocal agreement between UNITE and each county. It is set up that
way so officers from one county can work cases throughout the region, in
part so UNITE can bring in police unknown to local drug dealers.

State law and the agreement UNITE signed with each county say the compact
became effective only after several steps were completed. Those steps
included having the deal signed by the county judge-executive pursuant to a
resolution by the fiscal court, and filing a copy with the county clerk's
office and the secretary of state.

Allen and other attorneys challenged UNITE's authority in Jackson County on
several grounds, including that the agreement was not filed in the county
clerk's office until Oct. 5. UNITE started opening investigations in
Jackson County in March.

So before Oct. 5, UNITE officers had no jurisdiction to conduct
investigations, search houses and arrest people, Allen and Allen B.
Roberts, another McKee attorney, argued in a hearing yesterday.

Jensen and Karen Engle, executive director of UNITE, said that in the end,
they don't expect to lose many cases because of the challenges. One reason
is that UNITE officers always take along a local or state officer when
serving a warrant, which addresses the jurisdiction question, they said.

"I don't consider this a loss at all," Engle said of Maricle's ruling.

Charges could be dismissed

Allen disagreed, saying the ruling could lead to a number of cases or
charges being dismissed.

Allen said she's heard comments criticizing the challenge to UNITE's
jurisdiction as a technicality. But it is a serious issue that affects
people's rights, she and Roberts told Maricle.

"Constitutional rights are not technicalities. They didn't do what they
were supposed to," Allen said of UNITE.

But Commonwealth's Attorney Gary Gregory, his assistant Richie Couch and
Tom Jensen, UNITE's attorney, argued that the agency's agreement with
counties became effective when fiscal courts approved the deal in 2003,
before detectives started investigations.

The attorneys said the purpose of putting the agreement in the clerk's
office is so the public can know what it says, and that nothing was done in
secret.

Filing the agreement is a formality that does not affect its substance, and
as a result, the law does not require strict compliance in filing it to
make it effective, Jensen said.

The counties in the Cumberland task force are Bell, Clay, Harlan, Jackson,
Knox, Laurel, McCreary, Pulaski, Rockcastle, Wayne and Whitley. Jensen has
said the other UNITE task forces don't appear to face as many questions
regarding how agreements were filed.

Maricle said he respected UNITE's goal of tackling the drug problem, but
ruled the agreement giving its officers authority in Jackson County did not
become effective until May 21, when judges-executive in all counties in the
region had signed it and a copy was filed with the Secretary of State's office.

Maricle reserved ruling on whether UNITE's detectives had jurisdiction in
the county between May 21 and Oct. 5, when UNITE officials filed copies of
the agreement in the clerk's office in four counties in the region after
challenges alerted them that it hadn't been filed there.

It was unclear yesterday how many cases will be affected by pending and
potential challenges to UNITE's jurisdiction.

Under Maricle's ruling -- and any similar ones other judges might make --
courts would have to hold hearings for each defendant on whether to dismiss
cases or charges because facts would differ in each case, Allen said.

Circuit judges could also rule that UNITE met the requirements of the law,
as a judge in Owsley County did last week.

It's likely attorneys will ultimately ask state appellate judges to
consider questions over UNITE's jurisdiction because circuit judges will
probably issue divergent rulings.