WHAT DECIDES DRUG PROSECUTION?

Two Otsego County Cases Offer Look At The System

COOPERSTOWN - On Aug. 18, James Holmes, 21, of Chappaqua was charged with
third-degree criminal possession of a controlled substance.

State police say he was driving 84 mph down Interstate 88 in Otego with 32
individually wrapped packets of cocaine, plus six grams of psilocybin
mushrooms, in his car.

The charge against Holmes, one of the Rockefeller drug laws, presumes he
was trying to sell narcotics and carries a maximum sentence of 25 years in
prison.

However, more than six months later, Holmes -- who lives in the same
affluent community as former President Bill Clinton and Sen. Hillary Rodham
Clinton -- has not been indicted by an Otsego County grand jury.

In New York, defendants are entitled to be indicted or formally charged
within six months of arrest, or they can ask to have charges against them
dropped.

Otsego County District Attorney William "Jack" Gibbons said he has a waiver
of speedy-trial rights from Holmes' attorney, Joseph Cawley of Binghamton.
By agreeing to this waiver, Holmes has pledged not to press to have his
charges dropped on speedy-trial grounds, Gibbons said.

But Holmes' case is in Otsego County Judge Brian Burns' court, and Burns
said he is not sure defendants can give up their speedy-trial rights by
executing a waiver with the district attorney's office.

"I can't discuss a specific case, but I can say there are two kinds of
speedy-trial rights -- statutory and constitutional," Burns said, "and I'm
not sure you can waive this constitutional right."

The bottom line?

While other cases go forward, Holmes' case has been on hold. And if his
attorney moves to have charges dropped because Holmes has not been given a
speedy trial, Burns would consider the motion.

Cawley declined to comment on the case.

Gibbons said he has held back on prosecuting to allow Holmes to receive
drug treatment.

"What he's been trying to do is get into our drug court," Gibbons said. "So
we've delayed it to allow his attorney to make a pitch to the drug court team."

According to Otsego County Judge Michael Coccoma, someone accused of drug
dealing is not eligible for drug treatment court. Lawyers may speak to the
drug court team, but their chance of convincing the panel is nil, Coccoma said.

"We have strict rules to follow. Our policy is that if you're charged with,
or convicted of, selling drugs, you're not taken into drug court," said
Coccoma, who has overseen the county's program from its inception.

Gibbons said Friday, "I told Joe Cawley his client had a number of hurdles
to clear if he was going to get into drug court, but he's entitled to try."

Gibbons also said there is nothing unusual about agreeing to a speedy-trial
waiver and that he has entered into such agreements many times. He said he
believes the document is valid.

Oneonta lawyer Thomas Hegeman said he knew accused drug dealers can't get
into drug court, where drug users are given a chance to kick their habits.

Recently, Hegeman represented another young man facing the same charge as
Holmes.

On Sept. 25, more than a month after Holmes' arrest, Robert Proctor was
charged by Oneonta city police with third-degree criminal possession of a
controlled substance.

Hegeman said police alleged Proctor -- who is 20, black and from the Bronx
- -- was caught with 17 packets of cocaine.

According to court records, Proctor's last job was at a fast-food
restaurant, where he made $5.50 an hour. When arrested, he had almost no
money, and Hegeman was assigned to the case.

Bail was set at $75,000, and Proctor couldn't post it. He was jailed Sept.
25 and has been behind bars ever since.

The case against this young man moved quickly through the criminal justice
system.

Proctor pleaded guilty Jan. 24, and on March 3, Burns sentenced him to
three to nine years in state prison.

"The standard in these cases is shock and state time," Hegeman said. That's
what Proctor faces, shock camp -- boot camp for inmates -- and then a state
prison cell.

By contrast, Holmes is white. His mother is a lawyer, according to Gibbons.
He was a senior at Ithaca College when arrested and spent only four days in
jail.

He was pulled over for speeding in the westbound lane of I-88 in the early
evening of Aug. 18, according to state Trooper Mark Barbera.

"He said he was on the way from Westchester County to Ithaca College,"
Barbera said. "When I stopped him, I smelled marijuana. I asked him if he'd
been smoking, and he said, 'Yeah, over the weekend.'

"I asked him if he had any marijuana and he showed me a small amount. Once
I saw that, I had probable cause to search the vehicle."

Barbera found 32 packets of white powder that appeared to be cocaine, as
well as psilocybin mushrooms, and arrested Holmes. Laboratory reports have
since identified the substances as cocaine and mushrooms, according to
state police Senior Investigator Ricky Charles.

Holmes was arraigned before Otego town Justice Ronald Decker and locked up
in the Otsego County jail. Bail was set at $50,000.

Four days later, his mother bailed him out. Months later, he remains free,
his case one of many "floating felonies," where charges are in limbo
between town court and county court.

Jurisdiction in these cases stays with the lower court until someone is
indicted, but the lower court can't try a felony. So, for the case to move
to trial, Holmes must be indicted or charged directly by the district
attorney's office.

On Monday, Richard Brown, Otsego County's chief assistant district
attorney, said Holmes' comfortable upbringing did not win him special
treatment.

"What do you do with a guy in a case like this when he has no prior
involvement with the law?" Brown said.

Brown said such cases are reviewed individually, and the accused's criminal
history is an important consideration.

"Do you give a guy with money more of an opportunity than a guy who's poor?
No," he said. "But do you give a guy who has no criminal history, no
run-ins with the law, a chance compared to a guy with a long rap sheet? Of
course you do."

Hegeman said Proctor had no prior felony convictions, although he had been
in trouble as a youth.

Brown said Holmes has no criminal record. Brown also said Hegeman -- or any
lawyer representing someone accused of dealing drugs -- can ask to meet
with the drug court panel, and the district attorney's office would not object.

Gibbons said another consideration made in these two cases is, "One guy was
operating in Oneonta, in our community, and the other was just passing
through. The charge is the same, but I think there's a difference in these
cases.

"Then, when Holmes shows up in court, he's a college student," Gibbons
said. "His parents are concerned, want to get him into drug treatment, and
he has a lawyer with him.

"The other guy shows up alone. He has no reason to be here other than to
sell drugs," Gibbons said.

On Friday, Brown said the drug court team had turned down Holmes' request.

"I think now, he'll be in the same situation as Proctor," he said.

"There's very little room to maneuver on these charges. Unless he goes to
court and is acquitted, he's in trouble. He's facing a very serious
charge," Brown said.

When asked directly, Cawley declined to comment on whether he will seek to
have Holmes' charges dropped on speedy-trial grounds.

A conference on the Holmes case involving the district attorney's office,
Cawley and the court has been scheduled for April 4.