May 13, 2010 12:00

Poor documentation and fraud found in dwi dismissals

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State lawmakers disappointed in Guilford County DAs office.

The Guilford County District Attorney’s office dismisses dozens of driving while intoxicated charges every year, often because law enforcement officers fail to appear in court to testify against defendants. Conflicting accounts, shoddy paperwork and one documented case of fraud call into question the reason why many defendants get off. In about 18 cases filed in 2007 and 2008, prosecutors failed to comply with state law by neglecting to complete a form designed to document the reasons for dismissals. And in one case, an assistant district attorney concluded that fraud had been committed in changing a defendant’s blood alcohol content in an official report so that the prosecutor would have to dismiss the charge.

“It appears they’re not following the law,” said Rep. Verla Insko, a Chapel Hill Democrat who cosponsored the 2006 Governor’s DWI Task Force Recommendations bill, which was signed into law by Gov. Mike Easley, and went into effect that December.

The law requires any prosecutor who voluntarily dismisses a DWI charge to sign a detailed written explanation that includes, among other items, the reason why the charge is being dismissed, the driver’s alcohol concentration, a list prior convictions, what elements of the charge the prosecutor believes they can prove, what elements they believe they cannot prove, the name and agency of the charging officer and whether the officer is available to testify.

“Obviously, we intended that that be complied with,” said Speaker Joe Hackney, the bill’s main sponsor, “and it’s disappointing to hear that that might not be the case.” The law also requires that a copy of the Prosecutor’s Explanation of Dismissal or Reduction, commonly known as the longform dismissal, be sent to the head of the law enforcement agency employing the charging officer. Representatives of Greensboro police Chief Tim Bellamy, High Point police Chief Jim Fealy and Guilford County Sheriff BJ Barnes said their agencies have never received documentation of any dismissals.

An example of the incomplete documentation DWI charge dismissed for Joseph Bryan Mabe, a 22-year-old Greensboro resident. The long-form dismissal notes that Mabe blew a 0.11 — well above the 0.08 blood alcohol content threshold — during a traffic stop conducted by Greensboro police Officer BM Graves, and duly notes that Graves was not available to testify. The form is unsigned and undated.

Internal court records indicate the case was dismissed in May 2008. Graves was terminated from the department several months later, according to information provided by the Greensboro Human Resources Department. The prosecutor’s initials on sleeve of the case file are illegible.

“That’s my handwriting,” Assistant District Attorney William S. Reavis sad. “That was my dismissal…. My initials are on the shuck.

My initials are rather notorious. Judges know them because my handwriting is rather bad.” Reavis initially downplayed the omission, arguing that the central purpose of the law is to document the reason for the dismissal.

“DAs have big caseloads,” he said. “I make mistakes. Did that mistake circumvent the law? Does the law require strict adherence all the time? It’s a little redundant to write what elements of the charge I can prove when I’ve already said the reason the case was dismissed was the officer didn’t appear in court. At what point can we bring common sense into play? My name is on the shuck. Does that not comply with the spirit of the law?” District Attorney Doug Henderson did not take the opportunity to comment on the findings of missing and incomplete documentation, leaving it to Reavis and two other assistant district attorneys to explain the omissions.

“This should be a reminder to all DAs that it’s a statutory requirement to fill out dismissal forms,” Reavis ultimately said, after reviewing the deficiencies uncovered.

“And it’s best practice to fill out the form completely. Take the time to fill it out.” Reavis indicated he was uncertain of which entity bears responsibility for ensuring that law enforcement agencies receive a copy of the long-form dismissal.

“This office will have to consult with the clerk’s office, and see how that will be handled,” he said. “I imagine that will happen.

I don’t know where the breakdown is. That will require an examination.” Guilford County’s dismissal rate for DWIs is below the state average. Of the 2,899 impaired driving and implied consent cases disposed in Guilford County in Fiscal Year 2007-2008, data kept by the NC Administrative Office of the Courts indicates that 559 — or 19.3 percent — were dismissed. Dismissal rates across the Piedmont Triad range from a low of 10.6 percent in Rockingham County to a high of 26.6 percent in Randolph County.

In the majority of cases the dismissals appear to be legitimate and well documented. For example, charges are typically dismissed when blood reports come back showing the defendant’s blood alcohol concentration to be below the legal threshold, the defendant dies before trial, the defendant agrees to a plead to more serious charge such as involuntary manslaughter and the defendant can show that the officer did not have reasonable suspicion to make the stop. A review of about 100 voluntary dismissals from DWI charges filed in 2007 found that in 16 cases in which the defendants’ blood alcohol content either registered above the legal limit or they refused to submit to a Breathalyzer test, the long-form dismissals were incomplete or missing altogether. The Administrative Office of Courts provided YES! Weekly with case file numbers for DWI cases dismissed in Guilford County Courts from July 1, 2006 through June 30, 2008. Because of time constraints YES! Weekly was unable to review more recent information from cases dismissed between July 1, 2008 and June 30, 2009. “I’d wager that a large number of DWI cases were handled by this office,” Reavis said. “You’re talking about an office that’s ahead of the curve on DWI dismissals.”

The assistant district attorney added that the Guilford County office’s rate for completing required documentation appears to be “pretty good.” Assistant District Attorney Tom Carruthers said that given the demands of the job the omissions are understandable.

“You’re in the middle of a motion to continue,” he said. “You’re both filling out the long form and calling the next case. You’re taking ten to twenty seconds to furiously fill it in while the judge is waiting. If you don’t have a record of convictions in front of you, you don’t have time to run upstairs and get it.”

In other cases, prosecutors’ reasons for dismissal were contradicted by the recollections of charging officers, a dismissal was made because of documented fraud and officers apparently dropped the ball. Thomasville resident Daphine Letisha Bluett, 33, refused to take a Breathalyzer test after being stopped by Guilford County Sheriff Deputy EM League in May 2007. Prosecutor Caroline Pemberton dismissed the case later that year, indicating as her reason that League was not present on his regularly designated court date and the case had already been continued four times.

League said he does not recall ever being subpoenaed or contacted by telephone and called to testify in the case, and court records back up his story.

“We didn’t receive any subpoenas or serve any subpoenas on League,” said Major Tom Sheppard of the Guilford County Sheriff’s Office. “I suppose there’s a chance that they have been filed, but they’re not in our system, and it would be very unusual if they had been served and we didn’t have a record of it.” League said earlier this month that he was surprised to learn that the case had been dismissed, having assumed that Bluett had pled guilty. He could think of no reason a
representative of the court would not have been able to reach him. “We can be contacted very easily,” he said. Pemberton did not return a phone call seeking comment.

Evelio Perez-Perez, 29, of High Point, is recorded as having blown a 0.22 on a Breathalyzer — more than twice the legal limit — during a traffic stop by High Point police Officer CB O’Toole on March 26, 2007. The citation lists three witnesses, but the only subpoenas included in the file are for Officer O’Toole.  At the time YES! Weekly reviewed the case file, it included no long-form dismissal explaining why the charge was dropped.

Assistant Chief Derek Stafford, who reviewed the case, said the case was dismissed almost a year after the stop because civilian witnesses whose testimony was needed to win a conviction were not subpoenaed by the clerk’s office.

A second review of the case by YES! Weekly following Stafford’s investigation revealed a Post-It note attached to the citation stating, “Give to LMH to do long form.” YES! Weekly’s review uncovered eight separate DWI charges dismissed by Leah M. Howell for defendants who either recorded blood alcohol levels higher than the legal limit or refused to submit to Breathalyzer tests that were not documented by a long-form dismissal.

“If it turns out it was not done, it would be done,” Assistant District Attorney Howard Neumann said. “I’ll give her the opportunity to rectify all this.” In one case — that of Miguel Garcia, 23, of Thomasville — the long-form could not be located during YES! Weekly’s initial review, but materialized after the matter was brought to Chief Stafford’s attention. Howell’s statement explains that Garcia’s DWI charge was dismissed because the defendant was in federal custody awaiting deportation — an assertion that checks out with records maintained by the sheriff’s office.

In a ninth case dismissed by Howell, the long-form dismissal was unsigned and undated, but the sleeve of the case file bears Howell’s initials. Guilford County Deputy JS Shaver stopped 32-year-old Jack William Nance Jr. of Thomasville on Jan. 28, 2007 and charged him with DWI and driving while license revoked. Nance, whose record includes two previous DWI convictions in 1992 and 2005, refused to submit to a Breathalyzer test. Howell’s explanation attests that the state “could not prove any of the elements, as the charging officer was not present on his court date, and the state’s motion to continue was denied.”

Deputy Shaver said in an interview conducted in the presence of Col. Randy Powers and Major Tom Sheppard that he didn’t recall receiving any subpoenas. The major later reviewed the case and contradicted his deputy.

“We did receive a subpoena on Sept. 20, 2007,” he said. “It was served on Shaver by Officer GL Faust on Oct. 2 and returned to court on Oct. 3. Officer Shaver has obviously forgotten about that. He was incorrect when he said he was not served a subpoena.”

Confronted with the evidence, Shaver conceded, “Evidently, if Faust served it on me, then it was served on me. No dispute there.”

A phone message from the deputy about an hour later would only serve to cloud the circumstances of the case further. Shaver said he ran a search on Nance’s driver’s license, and the results indicated that the defendant was dead.

“I don’t know when he passed away or exactly what happened to him,” Shaver said. “Obviously, it happened in the city because we don’t have any record of it within the county as far as a dead body investigation or anything like that. This guy definitely passed away. I don’t know if he passed away prior to the court date or whatever, but a possibility exists that that might have been the situation.”

No other evidence of the defendant’s death could be found, and some was unearthed suggesting he is, in fact, alive. Prior to the interview with Shaver a woman identifying herself as Nance’s mother, who was reached by telephone, promised to pass along a request for an interview to her son. And Marge Howell, a communication officer with the Division of Motor Vehicles in Raleigh, said Nance’s license shows up as active.

Greensboro police Officer TL Eastridge noted in court records that in early 2007 he observed a vehicle spinning its tires near the intersection of Randleman and Meadowood roads in south Greensboro, adding that when he caught up with the vehicle, the driver had red, glassy eyes and reeked of alcohol.

According to Eastridge, the driver admitted to having drank four beers, and had given the passenger beer to pour out. The driver was 18-year-old Bradley A. Thomas of Greensboro, and he refused to submit to a Breathalyzer test, so Eastridge took him before Officer CE Leonard to have a blood sample drawn for analysis.

On June 12, 2007, the State Bureau of Investigation signed off on a Laboratory Report for Thomas, copies of which were provided to the the District Attorney’s office, the office of the Clerk of Court, the NC Department of Health and Human Services and the NC Division of Motor Vehicles.

A copy of the lab report declaring that Thomas’ blood alcohol concentration was 0.03 was stamped as received by the clerk’s office on June 18. A second, almost identical form declaring that Thomas’ blood alcohol concentration was 0.08 was stamped as received by the clerk’s office on June 20. Two months later, prosecutor Emily C. Faucher dismissed the charge, stating that there was “no evidence of impairment. Blood was drawn — alcohol concentration 0.03. Defendant refused all tests.”

There is no record of Thomas retaining a defense attorney. In late 2008, Assistant District Attorney Howard Neumann filed a memo for posterity in the case shuck. It states, “The SBI lab report in this file (showing BAC of 0.03) is fraudulent. The true report is in the civil revocation file under this file number and shows a 0.08.” Neumann later explained, “The SBI got a blood sample. They analyzed it, sent the report in. Somebody got a copy of the report from the clerk’s office, altered it and got the altered copy back in the file.” Neumann’s memo concludes by saying that the SBI conducted an investigation into the matter at his request, and was unable to determine who altered the report.

No criminal charges were filed, and the investigation was closed. “It’s a felony to change or alter a court document,” said Guilford County Clerk of Court David Churchill, who also said he had not been previously aware of the incident.

Carruthers added, “People get disbarred, prosecuted and put in prison for that type of thing.” Churchill noted that court documents are public reccords. As such, any member of the public can come to the counter in the file section, and a clerk will retrieve a file upon request. The clerks get busy and don’t always have time to monitor every file being reviewed.

“Normally speaking, it’s my policy to allow assistant DAs and probation officers to go back there,” Churchill said. “They don’t need to stand at the counter because they know what they’re looking for.” Private defense attorneys are also allowed to go behind the counter because they often talk to clerks about cases that have been recently closed, but most of the time they don’t go back to the vault to pull files.

Churchill suggested it would have been difficult to pin down exactly where the file was corrupted. “It sits on the prosecutor’s desk,” he said. “It might have happened in the courtroom.

Every once in awhile someone might walk out with a court file. Most of the time it’s inadvertent. We call them up, and they bring it back.” Neither the defendant nor the arresting officer could be reached for comment.

“I have absolutely no knowledge about how that document was forged,” prosecutor Emily C. Faucher said. “I left shoftly after that case was dismissed to be a stay-at-home mom.” Faucher added, “In my almost three and a half years I never saw anybody at the DA’s office that was anything less than professional, hardworking and ethical.

They were great people and hardworking prosecutors.”

Unlike some other cases tried by Guilford County prosecutors, Assistant District Attorney Lisa Johnson-Tonkins left only one field out in a long-form dismissal for DWI defendant Jerri Michelle Barr, a 22year-old Greensboro resident. Prosecutors who voluntarily dismiss DWI charges are required to state what elements of the charge that they believe can be proved. Johnson-

Tonkins left that field blank. Answering the question of which elements of the charge she believed could not be proved, she wrote, “All elements due to officer not arriving in court.”

Johnson-Tonkins said that “depending on what the answer is” the requirement to respond to both questions “can be redundant,” adding, “If you can’t prove any of the elements, you can’t say you could prove any of them in good faith.”

The case should have been a slam-dunk, but the prosecutor was unable to prove it because of confusion about which officer actually handled the case. The citation initially recorded Deputy VL Gaddy as the arresting officer. Deputy JR Marshall later explained that he made the arrest but relinquished the paperwork to Gaddy because he was completing a shift.

Major Sheppard said the case was calendared for Marshall’s scheduled court dates twice in a row, but then inexplicably switched back to one of Gaddy’s scheduled court dates.

Johnson-Tonkins’ characterized the district attorney’s office’s scheduling as “irrelevant.” “We try as an office to accommodate an officer’s schedule,” she said. “When you have two officers on the citation, we have to schedule it for one of their court dates. A subpoena was issued for Deputy Marshall.

They are bound to honor that subpoena, and he was not in court that day. The subpoena trumps the court scheduling.” The citation coupled with a supplemental narrative by Marshall makes a compelling case for conviction. Barr blew a 0.17 on a Breathalyzer, registering at more than twice the legal limit. Marshall’s narrative states that he heard loud, screeching tires from a car traveling in his direction. The screeching stopped abruptly, followed by a bang, and he later noticed a burgundy Isuzu Rodeo. Upon stopping the driver, Marshall noted that Barr had a blackened left eye, which she explained as an injury sustained from playing a golf game on Nintendo. He reported that both here eyes were glassy, and her breath reeked of alcohol. Barr reportedly told Marshall that she had drunk two 12 .oz cans of Budweiser at a friend’s house before the stop, and she performed poorly on a field sobriety test. Marshall acknowledged in an interview that he received a subpoena, but said he was unable to attend the trial because it wasn’t scheduled for one of his court dates, and he was tending to a sick child at home. “I spoke to the DA — it was a female — on the morning of the court date,” he recalled.

“I asked to get another court date, and they were unable to get another continuance.” Faucher added, “I take DWI cases very seriously. My position is, even if I think it’s a close call or we might have some deficiencies, or something’s arguable, I certainly would rather argue it and let a judge decide. Unless we just don’t have anything, we generally will try to proceed with it.” Lt. Robert Elliott of the Guilford County Sheriff’s Office said he believes the prosecutors in the district attorney’s office genuinely want to obtain convictions in DWI cases to make the streets and roadways safer, but added that the volume of cases can be overwhelming.

“We all want drunk drivers off the street,” he said. “We’ve seen the carnage that drunk drivers cause, and we’ve dealt with the family members that have to pick up the pieces. And it’s one of the hardest parts of the job, frankly.”

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