>From: "Peter McWilliams" <peter@mcwilliams.com>
>Subject: Just us in Gore's home state
>Date: Mon, 27 Dec 1999 17:19:05 -0800
>X-Mozilla-Status: 8001
>X-Mozilla-Status2: 00000000
>
>
>Pubdate: Sun, 26 Dec 1999
>Source: Knoxville News-Sentinel (TN)
>Copyright: 1999, The Knoxville News-Sentinel Co.
>Contact: letters@knews.com
>Address: PO Box 59038, Knoxville, TN 37950-9038
>Website: http://www.knoxnews.com/
>Forum: http://forums.knoxnews.com/cgi-bin/WebX?knoxnews
>Author: Randy Kenner, News-Sentinel staff writer
>
>ON HOLD BEHIND BARS
>
>Defense Lawyers Say Clients Being Held Without Counsel And Without
>Charges
>
>One question kept swirling through John Van Norden Barker III's mind
>while he was being held in the Knox County Detenton Facility last
>month: "Does anybody know I'm here?"
>
>It was a good question after Knox County Sheriff's Department officers
>took Barker "into custody" following a traffic stop that allegedly
>turned up some marijuana.
>
>But Barker, whose only previous brush with the law was a public
>intoxication charge, said he wasn't placed under arrest or charged
>with anything that night.
>
>No one read him his rights or took him before a judge, and he wasn't
>allowed to call his mother or a lawyer despite his pleas to do so.
>
>Instead, from the night of Nov. 4 until the early morning hours of
>Nov. 6, Barker, 20, was held alone while he contends a Knox County
>officer tried to get him to provide information about drug
>trafficking.
>
>"I didn't think anybody knew I was there," Barker said. "I was
>thinking my mom and dad and my girlfriend are going to think I'm dead."
>
>According to court records, Barker was finally charged with possession
>of marijuana with intent to distribute around 8:15 p.m. on Nov. 5 --
>nearly 24 hours after he was picked up. After appearing before a
>judge, he was released on bond on the morning of Nov. 6.
>
>If his experience of being held without being arrested or charged or
>allowed to call his family or a lawyer sounds like an isolated
>incident -- or even un-American -- think again. It happens all the
>time in the Knox County Jail.
>
>Up To 72 Hours
>
>Defense lawyers contend that some Sheriff's Department detectives for
>the past several weeks have been holding people in the jail for 24 to
>72 hours without charging them, advising them of their rights or
>allowing them to contact family members or a lawyer.
>
>Lawyers approached for this story told of at least a dozen people who
>have been held for considerable periods of time without being charged
>or taken before a judge.
>
>Sometimes they were held in the downtown jail in a small visiting
>booth with no toilet or mattress. During that time the detectives
>allegedly urged them to cooperate or to make undercover drug buys in
>return for reduced charges or no charges at all.
>
>The practice infuriates defense lawyers who argue that American
>citizens just can't be picked up and held without access to an
>attorney or being allowed to contact someone.
>
>"You see a pattern where people who are young and unsophisticated and
>powerless are abused by this type of technique," said Gregory P.
>Isaacs, a Knoxville defense lawyer.
>
>But the Sheriff's Department contends the practice of holding people
>is perfectly legal.
>
>"The first thing I would want to stipulate is that the actions of the
>narcotics staff are within the limits of the laws," said Chief Deputy
>Dwight Van de Vate, although the detectives involved aren't just in
>the narcotics division.
>
>Van de Vate said earlier this month it is the department's position
>that it's legal under certain circumstances to hold someone for up to
>72 hours without filing charges or letting them contact anyone.
>
>"Yes, as long as it is pursuant to an active criminal investigation,"
>said Van de Vate who later added, "The law affords certain standards
>in these instances that are intended to protect the integrity of the
>investigation."
>
>Asked if he didn't think most people might be alarmed to learn someone
>can be taken into custody and not allowed access to anyone for that
>long, Van de Vate indicated that investigators aren't dealing with
>saints here.
>
>"The average citizen will go through their entire lifetime having
>virtually no-contact at all with the law enforcement community," he
>said. "The law provides an extraordinary system of checks and balances
>intended to prevent innocent people from getting into trouble."
>
>That position, however, troubles defense lawyers, who point out that
>in the United States everyone is presumed to be innocent until proven
>guilty.
>
>"That is absolutely preposterous," said Knoxville defense lawyer
>Herbert S. Moncier. "Evidently Mr. Van de Vate and Sheriff (Tim)
>Hutchison have set themselves up to determine who is guilty, and
>whoever they determine is guilty, they just simply deny them any due
>process of law in Knox County."
>
>'No-Contact Holds'
>
>Barker said he was on his way to his girlfriend's house when he pulled
>over at a Sutherland Avenue car wash to let a passenger make a call.
>When he did, he said two Sheriff's Department cars containing three
>deputies, including Sgt. Thomas Finch, swooped down on him.
>
>A warrant filed by Finch --who was suspended for 30 days in 1994 for
>trying to cover up a jailer's beating of a handcuffed prisoner --
>claims Barker was stopped for going five miles over the speed limit on
>Sutherland. Barker contends he wasn't even moving when the officers
>showed up.
>
>According to the warrants, the officers discovered Barker had a
>revoked license -- something Barker disputes -- and they found more
>than three ounces of marijuana. He was taken into custody but was not
>arrested or charged.
>
>"I knew something was definitely wrong," Barker said.
>
>He said the officers also seized the car -- which belonged to his
>mother --and took $6 from him, then jested that they didn't want to
>take his change.
>
>"It was like a big joke and game to them," he said. "They were all
>sitting there laughing and giving each other high fives."
>
>Barker said he was taken to the detention facility on Maloneyville
>Road and placed alone in a cell but was not advised of his rights or
>even told whether charges would be lodged against him. He said he
>asked jailers repeatedly to let him make a telephone call but was told
>he couldn't because he was on a "no-contact hold."
>
>The next afternoon, on Friday, he said he was taken to meet Finch in a
>room. He said he asked for a lawyer.
>
>"He (Finch) said you may not even need a lawyer if you just work with
>me,' Barker recalled. "He said I may be able to get all the charges
>dropped if I helped get him the big man."
>
>At the time there were no charges, and Barker said he didn't know any
>"big man."
>
>A call seeking comment from Finch elicited a statement from Sgt.
>Robert Manges that all questions were being referred to Van de Vate.
>Manges, who has admitted lying to secure an arrest warrant for a
>fictitious person, has been forbidden by General Sessions Court judges
>from obtaining any warrants unless supported by a prosecutor.
>
>Finch's alleged action troubles lawyers, who say that if you are in
>custody, then questioning has to stop if you ask for an attorney.
>
>"They have an absolute right to counsel at that point," said David
>Eldridge, a member of the city's most highly regarded criminal defense
>firm, Ritchie, Fels & Dillard. "They have a right to be free from any
>further questioning until they have a chance to consult an attorney."
>
>It's not just defense lawyers who feel that way.
>
>"If the person being held insisted on talking to a lawyer, I think it
>would be prudent for the authorities to let them talk to a lawyer,"
>said Knox County District Attorney General Randy Nichols.
>
>As to the argument that a person isn't entitled to an attorney unless
>they are under "arrest," Tennessee law basically defines arrest as the
>loss of liberty.
>
>Van de Vate flatly denies that any Knox County detective would
>continue to question someone after they have asked for an attorney. He
>said officers know that would be a violation of a defendant's rights.
>
>"There is absolutely no merit in this allegation whatsoever," Van de
>Vate said in a Dec. 21 letter responding to questions for this story.
>
>In that letter Van de Vate also wrote that Barker "was held for twelve
>hours" prior to being charged and that "Officer Finch held Barker for
>investigative purposes in order to determine which of the two
>individuals in the car to prosecute for the drugs."
>
>According to warrants and bond papers, however, Barker was stopped at
>8:50 p.m. on Nov. 4 and not charged until 8:15 p.m. on Nov. 5 --
>nearly 24 hours after he was taken into custody. The bond papers are
>stamped at 4:55 a.m. on Nov. 6.
>
>Barker said Finch asked him to sign a paper that would acknowledge he
>had talked to the officer. Barker said Finch indicated if he signed
>the paper, he'd be allowed to make a phone call.
>
>Barker said the paper turned out to be a waiver of his right to an
>attorney, but Barker didn't care because he just wanted to call his
>mother. He said he didn't get to make the call and spent the rest of
>the day and night in jail.
>
>A Lawyer's Frustration
>
>What Barker didn't know at the time was that his mother had learned he
>was in jail and had hired Knoxville lawyer Wesley Baker to represent
>him. Baker subsequently contacted jail officials and asked to see
>Barker, but they refused. When Baker persisted, he found himself
>talking with Sgt. Manges.
>
>"He (Manges) said we have a 'no-contact hold' on him (Barker)," Baker
>said. "And I said he's got a right to talk to his lawyer."
>
>Still, Baker was not allowed to see Barker. He spent Friday afternoon
>and evening trying to find a judge to get an order freeing his client
>from jail. Barker finally was released on Saturday morning.
>
>"This is what they are doing (at the Sheriff's Department)," Baker
>said. "They are saying if they haven't charged him that he doesn't
>have the right to an attorney."
>
>Baker doesn't buy into the argument that people being held don't have
>rights because they haven't been formally arrested.
>
>"I think if you can't leave, you have a right to an attorney," he
>said. "He's incarcerated. He's in jail."
>
>Disappearing Into Jail
>
>Some lawyers say Barker was lucky because at least someone knew he was
>in jail.
>
>Knoxville lawyer Russ Greene said a client he was already representing
>on a drug charge was picked up Dec. 13 after deputies responded to a
>disturbance call at the man's residence and allegedly discovered drugs
>there.
>
>For the next three days Greene tried to find the man but was told
>initially that his client wasn't in custody. Later he was told the man
>had apparently made bond. Greene couldn't find any paperwork, but he
>thought it might have been delayed.
>
>On Dec. 15 he told his client's mother, 'You might as well face it,
>he's gone. Evidently someone has made his bond, and he's skipped town."
>
>As it turned out, Greene's client hadn't even left the City County
>Building.
>
>"Thursday morning I came down here," Greene said, "and (another
>lawyer) stopped me and said, 'There's some guy downstairs wants to see
>you, says he's your client.' So I go tearing down there ... and sure
>enough, there he is in Booth 6."
>
>Booth 6 is a tiny visiting room in the Knox County Jail furnished only
>with a metal stool bolted onto the floor. Greene's client said he had
>been there most of the three days.
>
>The client said deputies had placed him on a "no-contact" hold,
>telling them he was being held "for investigation." He ultimately
>decided to cooperate with them and make some undercover drug buys.
>
>Greene said: "If you've seen that booth down there, that's horrendous.
>I can't imagine putting an animal down there, much less a human being.
>But this happens all the time."
>
>Van de Vate said it would be unusual for jailers to deny that someone
>being held in jail was actually there.
>
>"It is not the policy of the department to deliberately avoid
>responding to an inquiry regarding the status of a prisoner," he said.
>
>But without going into detail, he also said there is a distinction
>between "individuals incarcerated in the jail as inmates subject to
>the normal intake procedures associated with arrest and those persons
>who are being held pursuant to investigative detention."
>
>Another defense attorney, Mike Whalen, has a story similar to Baker's.
>He said he was visiting a client in one of the booths when a man in a
>neighboring booth asked if he was a lawyer. When Whalen said he was,
>the man -- Baron Walden Henderson, 23 -- asked for help in getting out
>of jail.
>
>"He (Henderson) said, 'I've been in this room for over 24 hours and
>they say are going to keep me here for 72 hours,'" Whalen said.
>
>Henderson, who has been charged with two counts of aggravated burglary
>and with being a fugitive from justice, said he was picked up on the
>night of Nov. 22 but was not arrested or charged with anything
>
>"They placed me in handcuffs, and they said you are being detained
>under investigation," Henderson recalled.
>
>He said he spent the next two days in the tiny booth, sleeping on the
>floor. He said he asked for a Bible and some books and was denied both.
>
>Van de Vate wrote that Henderson is a fugitive from Florida "suspected
>in a string of bank and ATM burglaries from Florida to Tennessee." He
>wrote that Henderson apparently was held for 24 hours after his
>apprehension before being charged.
>
>According to court documents Henderson was in jail by 6:18 p.m. on
>Nov. 24 and the two burglary warrants were sworn out around 8 a.m.
>Nov. 25. There is no documentation in court records to indicate
>Henderson was jailed on Nov. 22.
>
>Henderson said he was taken to see detectives twice.
>
>"They said, 'Are you going to talk to us?' and I said, 'Can I have an
>attorney present?' And they said, 'Take (him) back to the booth.'"
>
>The conversation between Henderson and defense attorney Whalen was
>brief. Both men said that as soon as they started talking, two jailers
>burst into the room and accused Whalen of soliciting business and said
>he couldn't talk to Henderson.
>
>Whalen didn't take that very well.
>
>He shot back, "This man has a right to talk to a lawyer, and the man
>wants to talk to a lawyer."
>
>Henderson recalls that he told Whalen, 'It's all right, man. I'll talk
>to you later."
>
>What happened angers Knoxville lawyer Bruce Poston, who was later
>appointed to represent Henderson.
>
>"They can't disappear off the face of the Earth for all intents and
>purposes," Poston said. "We don't do that in this country."
>
>No Recourse
>
>Defense lawyers said there is apparently little they can do about the
>extended periods that people are being held without charge.
>Investigators apparently aren't seeking to get statements under those
>conditions, an action that could be attacked in court if a defendant
>were denied a lawyer. Instead, the defense lawyers say, detectives are
>holding people to compel them to cooperate.
>
>But Van de Vate said: "That's not true at all. That's essentially
>alleging (the holds are used to force people to cooperate), and that
>simply isn't the case. And it shouldn't be overlooked that these are
>persons who have been involved in a criminal activity."
>
>He said officers know everything they do is going to be scrutinized
>and that if they violate the rules, they are going to lose in court.
>
>"Now if criminals and defense lawyers don't like the rules," said Van
>de Vate, "they need to take their complaints to the
>Legislature."
>
>In his letter Van de Vate noted: "Of all the things that call the
>credibility of these defendants into question, none is more striking
>than the fact that none of the aforementioned have lodged any form of
>official complaint in any venue whatsoever."
>
>Most of the lawyers contacted for this story, however, said few of
>their clients can afford to challenge the holds.
>
>Whalen, for example, notes that when he and Henderson talked,
>Henderson hadn't been charged and it wasn't clear if he was going to
>be, particularly if he decided to cooperate.
>
>"He can't stand up for himself," Whalen said. "I can't stand up for
>him, either. If I stir the pot, maybe he gets charged."
>
>Sometimes someone is held and never charged.
>
>Joey Kent, 19, who is represented by Whalen, said he was held for
>roughly 30 hours after a traffic stop in November but not charged with
>anything.
>
>That didn't stop sheriff's deputies from seizing his car and allegedly
>pressuring him to make undercover drug buys for them.
>
>Said Kent: "I was just there for questioning, they said. I asked a couple
>of times (for a phone call), and they said, 'No, you ain't getting no phone
>calls.'"
>
>Kent is serving 18 months on probation for a drug conviction, but he
>hasn't been in any trouble since that conviction. He said he has a
>warehouse job that's kept him at work 12 hours a day during the
>holiday season.
>
>"I haven't done nothing, man," he said. "All I do is work and sleep.
>I'm trying ... to get my life situated. I'm not trying to get sent to
>prison."
>
>He said during his incarceration Lt. Fred Ludwig, a longtime Sheriff's
>Department deputy, asked him to make some undercover buys, but Kent
>refused. In the meantime, his family was trying to find him, and he
>says they were told he wasn't in jail. Kent said his sister was also
>asked by Ludwig to make a drug buy to help out her brother, but she
>also refused.
>
>Kent said when he refused to do Ludwig's bidding, he was told he
>wouldn't get his car back unless he cooperated. Although no charges
>have been filed against Kent, his car still hasn't been returned.
>
>Ludwig did not return a call seeking comment.
>
>In his Dec. 21 letter Van de Vate wrote: "Defendant Joey Kent
>confessed to stealing the wheels and tires from another car and then
>placing them on his own. He was held in order to allow investigators
>time to identify the rightful owner of the property."
>
>But Kent -- who is not a defendant -- was not charged, according to
>Van de Vate, because even with a confession someone can't be charged
>"unless the owner is available to attest to his or her loss of property."
>
>The letter doesn't say why the owner is unavailable to attest to the
>theft. It also doesn't state how officers knew the wheels and tires
>had allegedly been stolen if they didn't know who the rightful owner
>was or if they hadn't attested to their alleged loss.
>
>Your Rights
>
>Can a law enforcement agency in Tennessee hold someone for 72 hours
>without arresting them or taking them before a judge?
>
>"I think the bottom line on the status of the law regarding the
>question of how long an individual may be held without an appearance
>before a magistrate, is that there is no bright line rule," defense
>attorney Eldridge said.
>
>Almost every lawyer questioned -- ranging from District Attorney
>Nichols to Knox County District Public Defender Mark Stephens -- felt
>that a person can be legally held for a certain period of time without
>being charged or before a judge.
>
>According to Eldridge, the so-called 72-hour rule arises from a 1944
>Tennessee Supreme Court case, that said holding someone 72 hours
>before taking them before a judge doesn't render a confession taken
>during that time inadmissible.
>
>But two recent decisions -- a 1991 United States Supreme Court
>decision and a 1996 Tennessee Supreme Court decision -- strongly
>suggest that a person should appear before a judge within 48 hours.
>
>Both rulings forbid delaying a person's appearance before a judge "for
>the purpose of gathering additional evidence to justify the arrest."
>
>Perhaps more tellingly, Tennessee Rules of Criminal Procedure require
>that an arrested person be "taken without unnecessary delay" before a
>magistrate.
>
>That language was specifically placed in the rules, according to a
>1988 appeals court ruling, to discourage "the practice of some
>officers of making arrests, locking arrestees in jail without benefit
>of a (charging instrument), not bothering to take the accused before a
>magistrate for days."
>
>Whalen has a simpler take on the issue:
>
>"If we start agreeing that people who look like they are guilty don't
>have rights, you better check real careful in the mirror in the
>morning to make sure you don't look guilty."
>
>Van de Vate, however, maintains the actions of the Sheriff"s
>Department in these instances have been legal.
>
>"Again, although drug dealers and their attorneys may feel that the
>law is unfair, the fact of the matter is that complaining about police
>procedures is nothing more than making excuses for criminal conduct."
>
>
>================================================================
>
>This message is sent to you because you are subscribed to
>   the mailing list <LIST@mcwilliams.com>.
>To unsubscribe, E-mail to: <LIST-off@mcwilliams.com>