Owsley County

WRONG INTERPRETAION OF LAW LEADS TO 40 CASES' DISMISSAL

BOONEVILLE - Drug trafficking cases? Dismissed.

Bloody assault cases? Dismissed.

Shots fired at a sheriff's deputy? Dismissed.

At least 40 potentially serious cases have been dismissed by Owsley County
judges over the past five years after they misinterpreted state law.

Circuit Judge William W. Trude Jr. acknowledged in a recent interview that
many of the dismissals came about because he wasn't familiar with the law.

For years, Trude has acted on his impression that state law required him to
dismiss any cases in which defendants hadn't been indicted within 60 days
of a lower court's decision to refer them to a grand jury.

He was wrong.

The rules do not require that such cases be dismissed -- only that
unindicted defendants be released from jail.

"A defendant held to answer for longer than 60 days without having been
indicted shall be entitled to discharge from custody," the rule says.

After reading that passage, Trude said it appeared that he'd been
improperly dismissing cases for years.

"Nobody's ever brought it to my attention," Trude said.

Asked why he hadn't consulted the law books earlier, Trude said: "Well,
that's a good question ... that's how we've handled it all along."

Cases were also dismissed by District Judge Ralph McClanahan, who no longer
hears such motions to dismiss for lack of indictments.

In an interview, McClanahan stood by his interpretation that the law forces
the dismissals.

The effect of that interpretation has been that Owsley County cases
essentially disappeared.

Commonwealth's Attorney Tom Hall could seek indictments to resurrect the 40
dismissed cases -- as he has in other instances -- but he hasn't.

In an interview, Hall said he can't take many of the cases to a grand jury
because police don't have enough evidence for indictments.

"The district court is very quick to summon the grand jury," Hall said.
"That doesn't mean that I'm compelled to take that case to the grand jury."

In at least 29 of the 40 cases, Hall said, either the police didn't show up
to testify in front of the grand jury or their investigation was
insufficient. In many cases, Hall said, police turned over only a warrant
sworn by the alleged victim and an arrest citation showing that the warrant
had been served.

With so little material for a case, Hall said, it would be irresponsible to
seek a felony indictment.

In a letter he sent to area lawmen last year, Hall said: "There are
numerous felony cases pending where no investigations have been conducted,
or if investigated, the actions by the case officer have not been documented."

Former Owsley Sheriff Paul Short, who left office last month, suggested
that Hall didn't want to push cases unless he was guaranteed a conviction.

"We can take them to court, but we can't make them prosecute them or indict
them," Short said.

The former sheriff acknowledged that his cases were not always ironclad.

"We may not have had enough evidence sometimes, but other times we did,"
Short said. "I don't know what else to tell you."