MAGOFFIN COUNTY: PROSECUTOR'S OFFICE LOSES TAPES; POLICE LOSE CONFIDENCE

SALYERSVILLE - Eighteen felony cases have been swept out of court in
Magoffin County since the end of 2000, and though the local prosecutor
could bring them back, he hasn't.

Magoffin Commonwealth's Attorney Graham Martin won't comment on why
various defendants, including accused drug dealers and marijuana
growers, have been allowed to walk. The dismissals are a prime example
of how inactive prosecution can poison police attitudes.

The trouble began as Martin took office in 2001. Tapes of some
grand-jury sessions were lost in transition as Martin's predecessor,
Randy Campbell, left office. Such tapes must be preserved for defense
lawyers' use.

The loss meant that at least 27 indictments, including charges of
violence and sex abuse, had to be dismissed.

The good news: Martin could seek new indictments in each case. The bad
news: In 18 of the 27 cases, his office has not done so.

In the nine cases for which Martin's office got new indictments, there
have been just four resolutions: a probation, two pre-trial diversions
and an acquittal.

Martin referred questions about the cases to his assistant prosecutor,
Lori Daniel.

Daniel said she and Martin have let the 18 cases lie mostly because
local law enforcement didn't provide enough evidence -- even though
there was enough evidence to persuade grand jurors to indict previously.

Charles Gambill has benefited from the inaction.

In 1999, Gambill was charged with felony theft. Also that year, a
Kentucky State Police trooper reported finding about 45 marijuana
plants behind Gambill's house; Gambill was charged with cultivating
the plants. Within two years, both cases were dismissed.

Trooper Randy Woods, who worked on the marijuana case, reacted to the
outcome with resignation, not surprise.

"When it happens over and over again, you can't get mad about it,
because it's going to keep happening," Woods said. "That stuff goes on
more than you know."

It does.

Magoffin County had the highest dismissal rate in the state for drug
cases in circuit court, 40 percent, from 1996 through early 2002,
state records show.

During 2001, Martin's office opened 83 cases. Only seven have resulted
in sentences in which the defendants had to serve time behind bars.

As a result, police tell local prosecutors that they have learned to
avoid bringing cases to them, Daniel said.

She recalled contacting the state police several times after being
hired in 2001.

"I said, 'We've got a drug problem, drug traffickers and no
indictments. What's going on here?' They said they had no confidence
that anything was going to happen."

Meanwhile, the whereabouts of the grand-jury tapes that caused the 27
dismissals remains a mystery.

Campbell, the former prosecutor, lost re-election to Martin in 2000.
Campbell has said his office turned over all the recordings. Martin
said he never got them. The men have argued about the matter in local
newspapers.

In one letter to the editor, Campbell wrotethat Martin once told him
"that he would not run against me in the election. That was a lie. He
further told me the last thing he wanted to do with his time was to
spend it prosecuting criminal cases. Apparently, that was the truth."

Daniel said Martin never agreed not to run and certainly did not show
disdain for criminal prosecution. "There will never be an agreement as
to what went on in that conversation," she said.