Hernandez attorneys: Missing evidence mandates dismissal

Public defenders ask judge to toss out drug case.


Drug charges against not only Carlos Hernandez but all defendants in which drug evidence was collected by the Shawnee County Sheriff’s Department should be thrown out, assistant public defenders told a judge Wednesday.

On Wednesday, Kris Lawless and Julia Spainhour, Hernandez’ defense attorneys, handed in written arguments urging District Judge Eric Rosen to dismiss the Hernandez drug case.

The district attorney’s office has about a week to submit written arguments in the case, then Rosen has said he would try to issue a ruling within 30 days.

Hernandez is asking Rosen to dismiss a misdemeanor marijuana possession charge and a felony drug tax stamp charge based on contentions there was misconduct by deputies and a break in the chain of marijuana evidence.

In six days of hearings starting Feb. 18 and ending March 16, testimony and records delved into Cpl. Timothy P. Oblander’s cocaine use as a deputy, two inconclusive internal affairs investigations into the disappearances of cocaine evidence and allegations of corruption, cover-ups, evidence tampering and theft of drug evidence.

A public drive seeking Sheriff Dave Meneley’s removal from office via a recall election surfaced at that time.

“The criminal justice system cannot allow the misconduct of law enforcement officers to be ignored and concealed while citizens arrested by such officers are imprisoned for the same criminality,” Lawless and Spainhour wrote. “Oblander’s misconduct was concealed by actors in the criminal justice system who are sworn to reject tainted evidence. Due process demands this court find the drug evidence in this case and all drug evidence collected by the Shawnee County sheriff’s office be ruled unreliable, incompetent and inadmissible.”

The defense briefs quoted a U.S. Supreme Court case in which Justice William Rehnquist wrote the court might face a case in which the conduct of law enforcement officers was “so outrageous that due process principles would absolutely bar the government from invoking judicial processes to obtain a conviction.”

“This is the situation,” wrote Lawless and Spainhour.

In the Hernandez brief, defense attorneys contended:

• Prosecutors failed to show “with substantial certainty” that the confiscated marijuana hadn’t been altered, noting the marijuana was 0.5 ounce lighter than when seized.

• The sheriff, in bad faith and in violation of Hernandez’ due process rights, failed to preserve evidence.

• “Public confidence in the criminal justice system will be damaged if this prosecution is allowed to continue.” The attorney general’s office and district attorney’s office denied Hernandez’ due process right by failing to disclose misconduct in the sheriff’s office, which was known on Jan. 15, 1996.

The Hernandez challenge was filed after a 1996 Kansas Bureau of Investigation report was released in December about its probe into the 1994 disappearance of about 0.75 of an ounce of cocaine from a sheriff’s evidence locker. In 1996, the attorney general’s office concluded the statute of limitations had expired, and there wasn’t enough evidence to file charges.

At times, the Hernandez brief blasted the law enforcement community, calling a KBI probe and an attorney general’s inquisition, both in 1996, “half-hearted.”

Testimony by four deputies and two other witnesses “indicates that the head of the sheriff’s department (Meneley) concealed the problem and lied under oath,” the defense brief said.

“The stealing of evidence, the tampering with evidence, the invocation of Fifth Amendment rights (by Oblander) did not cause the sheriff to fire Mr. Oblander. He was promoted,” defense attorneys wrote.

The Hernandez motion presents Rosen with circumstances never confronted by a Kansas court, Lawless and Spainhour wrote. “The facts uncovered during this motion hearing shake not only the public confidence in the system, but the system itself,” they wrote.

© Copyright 1999 The Topeka Capital-Journal


By Steve Fry

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