TRYING PUBLIC TRUST

Punishment of Drug Offenders Varies Widely

MANCHESTER - Monroe Sizemore, a former coal miner, makes no bones about it:
He has sold drugs to make extra money.

Police say they've caught him selling pills or cocaine four times since
1994, but Sizemore hasn't had to pay much in the way of penalties.

Dismissals, reduced charges and shock probation meant that he spent about a
month in jail on the first three drug charges.

"I think it was awful nice," Sizemore said, to get "a three-time break."

Last year, he pleaded guilty to possession of cocaine -- a charge that was
amended down from trafficking. Court records say he was sentenced to four
years' probation after serving 59 days in jail. He also served six months
of home incarceration.

Stories like Sizemore's suggest that the court system presents little
deterrent to drug offenders -- a suggestion that judges and prosecutors
call simplistic.

Still, in Eastern Kentucky, a region besieged by traffickers and the misery
they feed, there's no escaping the fact that often the crime is like cancer
and the punishment like aspirin.

For example:

. In Magoffin County, an assistant commonwealth's attorney said the
Kentucky State Police have served notice that they don't trust local
prosecution.

. In Perry County, the prosecutor says the circuit judge won't let him get
tough on drug traffickers.

. In Owsley County, a judge dismissed several cases as a result of
misinterpreting the law.

. In Martin County, a district judge last month dismissed more than 120
cases in a single order, saying they had lingered too long without any real
prosecution. A few were older than 10 years.

The Herald-Leader examined hundreds of individual criminal court files, and
electronic summaries of more than 39,000 drug cases filed in circuit courts
from 1996 through early 2002. The electronic records showed that circuit
courts around the state rank poorly on various measures:

. Courts in 32 counties had conviction rates of 50 percent or less in drug
cases.

. Courts in 18 counties dismissed 20 percent or more of their drug cases.

. Courts in 25 counties granted probation to more than 60 percent of the
people convicted of drug crimes.

. And courts in 18 counties allowed at least 20 percent of their cases to
linger 18 months or more without resolutions -- risking the loss of
evidence or witnesses' memories. (The American Bar Association recommends
that all felony cases be resolved within a year.)

Courts in six counties ranked among the worst on three or more of those
measures. All were in Eastern Kentucky.

Criminologists have long debated the effect that tough enforcement and
sentencing have on reducing drug crime. But prosecutors and others say that
effective, consistent enforcement is vital to maintaining public confidence
in the judicial system.

"A community needs to know that people who violate the law will be held
accountable," said Bell Commonwealth's Attorney Karen Blondell.

So why are drug cases handled differently, depending on the county in which
they're tried?

Some prosecutors are more aggressive than others, and judges' philosophies
differ. But experts -- and former court officials -- say politics plays a
key role.

In rural Kentucky, elected sheriffs, prosecutors and judges are
particularly susceptible to political influence, said Gary Potter, a
criminal-justice professor at Eastern Kentucky University. Potter has made
several studies of crime in rural Kentucky.

Rural electorates are small, and extended families are large, Potter noted.

"If you arrest a bootlegger, or a marijuana grower, or an OxyContin seller
in a particular family, and pursue the case all the way through, you're not
just angering that one person," Potter said. "You may be angering hundreds
of constituents in a county that may only have two, three, four thousand
votes. So there is a great deal of discretion applied by criminal-justice
personnel, some of which is simply politically motivated."

Harlan County Sheriff Steve Duff attributed some officials' reluctance to
bust drug dealers to "a sense of self-preservation for sheriffs who want to
get re-elected."

Steve Tackett was not re-elected as Perry County commonwealth's attorney in
2000. But he could have been, he said, if he'd made political deals.

"There were several cases that I had that if I had agreed to dismissals, I
would have gotten enough votes to win the election," Tackett said. "In a
county the size of Perry, a large family can make a difference. And if you
are politically astute, I guess you watch who you indict."

Plenty of Chances For Error

Kentucky's top judge, Supreme Court Chief Justice Joseph Lambert, said
there are many reasons for the disparate handling of drug cases. The
factors include differences in the quality of police work and prosecution.

To be sure, there are many valid reasons courts don't convict every
defendant -- or send every convict to prison.

Many drug offenders get probation because prison space is limited and
costly. Gov. Paul Patton angered prosecutors recently when, in a bid to
save money, he released nearly 900 non-violent offenders -- including many
drug convicts -- from prisons before their sentences were complete.

Prosecutors often dismiss or reduce charges to bargain for guilty pleas --
a necessity in a swamped system that can't try every case.

Informants, who are often key witnesses in drug cases, disappear or commit
crimes of their own, undermining their credibility.

That's why prosecutors had to offer Monroe Sizemore probation in his most
recent drug case -- the informant got in trouble, said Richie Couch, an
assistant commonwealth's attorney in Clay County.

Couch said many people do not understand the complexities of the courts.
For example, in Sizemore's 1994 case, prosecutors couldn't use the 1,500
pills found in his house as evidence after defense attorneys successfully
argued that police had exceeded the bounds of their warrant.

"Drug cases, to me, are the hardest cases we have," Couch said, in part
because a number of things can go wrong with them.

Who is to blame?

When things go wrong in the courtroom, it's not always easy to determine
who's responsible.

For example, District Judge Susan M. Johnson last month issued a blanket
order dismissing more than 120 cases in Martin County -- including such
charges as felony assault and drug trafficking.

The cases, which were filed from 1991 through last year, had lingered
without indictments after they were referred to the grand jury from
district court. There is no indication in court files that the cases were
ever presented to the grand jury, said Martin Circuit Clerk Jack H. Horn.

Presenting cases is typically the job of the prosecutor, but Commonwealth's
Attorney Anna Melvin, who took office in 1994, said she didn't know whether
the cases in question were presented.

Melvin said it's the job of police to bring her cases to take before grand
juries. She said she has often written letters to police to try to get them
to bring cases.

But one former lower-court prosecutor in the circuit said police didn't
want to work with Melvin.

Former Johnson County Attorney Scott Pres-ton said police regularly asked
him to reduce charges so cases could be resolved in district court, rather
than going to Melvin's bailiwick.

"I got the impression that the police officers didn't have any faith in her
prosecuting abilities," said Preston, who has had bitter differences with
Melvin.

Melvin said no police officer had ever expressed such reservations to her.

She announced an initiative last year aimed at getting more felony cases
into circuit court and reassuring the public that defendants are being
treated equally.

In statistical terms, Melvin's circuit -- Johnson, Martin and Lawrence
counties -- ranked among the worst in Kentucky in the newspaper's analysis
of the state court data.

The counties had a combined conviction rate of 44 percent, and a
significant case backlog. But Melvin said the numbers were inaccurate or
skewed by factors beyond her control.

Several cases could not be resolved because police couldn't find people who
had been indicted, Melvin said. She estimated that her conviction rate is
consistently 85 percent or above.

Data Mislead, Prosecutor Says

Statewide, the data show Kentucky's average conviction rate for felony drug
cases was 64 percent.

The closest national comparison dates to 1998, when 72 percent of felony
drug defendants were convicted in the 75 largest U.S. counties, according
to the U.S. Department of Justice.

Several prosecutors took issue with the picture reflected by the state data.

In Fayette County, where the numbers show a conviction rate in circuit
court of 60.4 percent, Commonwealth's Attorney Ray Larson said that number
is artificially low.

The data include cases his office didn't have a chance to prosecute, Larson
said, such as cases dismissed in state court after they were adopted for
federal prosecution and cases dismissed by the grand jury before any
indictment.

Larson's own figures, adjusted for such factors, put his 2002 conviction
rate for drug cases at 98 percent.

It's not clear that every county would see the kind of difference Larson
cites, but it's true that the state court data do not reflect all the
nuances of a complex system. The information is sent to the state
Administrative Office of the Courts by local circuit clerks, and AOC
officials do not vouch for its accuracy.

Nonetheless, the reporting requirements are uniform statewide, making it
clear that accused drug dealers face more aggressive enforcement,
prosecution and penalties some places than others.