DUI charges against former deputy jailer dropped amid controversy

One of Whitley County’s longest running DUI cases, which involved a former deputy jailer, was dismissed for the second time in nearly two years Thursday morning.

The 2010 DUI case was first dismissed in late 2011 but was reinstated four months later.

The case was scheduled for trial Thursday morning, but District Judge Fred White ruled that he erred when he reinstated the charges last year because he no longer had jurisdiction in the case.

Neither police nor prosecutors were happy with the ruling.

Commonwealth’s Attorney Allen Trimble, who was the special prosecutor in the case, said that he was disappointed with the ruling.

"The problem is the commonwealth can’t appeal," Trimble said.

The case in question involved Lloyd E. "Oscar" Davenport, who was arrested on May 9, 2010, and charged with careless driving and driving while under the influence.

The trial in the case was continued multiple times after defense attorney Jane Butcher complained that she hadn’t received discovery evidence in the case. Butcher later clarified those remarks to say that she had not received usable discovery evidence in the case.

On Dec. 7, 2011, Butcher renewed her argument that she hadn’t received discovery evidence in the case or at least useable discovery evidence. Davenport was scheduled to be tried on that date.

At that point, interim Whitley County Attorney Don Moses recused himself from prosecuting the case, and White agreed to drop the charges because discovery evidence hadn’t been provided.

White’s order states that on Sept. 20, 2010, a discovery order was entered requiring the county attorney to produce to the defendant any and all evidence, which was intended to be presented at trial, and that order had not been complied with in 14 months "the court being otherwise fully and sufficiently advised."

Williamsburg police, who were upset by the ruling and the fact that the commonwealth wasn’t represented during the hearing because of Moses recusal, asked Kentucky Attorney General Jack Conway to appoint a special prosecutor in the case.

On Dec. 15, 2011, Conway appointed Trimble as special prosecutor.

Trimble filed a motion to set aside the order of dismissal on Dec. 21, 2011. White granted the motion on March 7, 2012.

After reading past case law that Butcher cited Thursday morning, Judge White ruled that he didn’t have the legal authority to reinstate the charges in 2012 because he lost jurisdiction over the case 10 days after he signed the court docket ordering it to be dismissed.

"This is not a discovery issue. Once I dismiss the thing after 10 days I don’t have the ability to reinstate it," Judge White said. "I can’t see any way around that case. As much as I hate to admit it, Ms. Butcher is right."

Trimble argued that the case shouldn’t be dismissed because he filed the motion to reinstate the charges within 10 days of being appointed as special prosecutor in the case.

"I think the commonwealth protected its rights," Trimble said.

He contended that because Moses recused himself, the prosecution wasn’t represented and couldn’t have filed a response for much of the 10 days following White’s initial dismissal of the case.

He also argued that White ruled in error dismissing the case in the first place on the grounds that Butcher hadn’t received discovery evidence or usable discovery evidence in the case.

White rejected all of those arguments.

"My finding would not be based on whether the discovery was received or not. It is based on it was dismissed and I lost jurisdiction once the 10 days ran out," Judge White said from the bench.

 

Police camera footage

The discovery evidence at issue was a video from a dashboard camera in a police cruiser that recorded part of the traffic stop when Davenport was pulled over after allegedly crossing the centerline four times.

Butcher repeatedly complained during the case that she had either not received a copy of the footage from the camera or that the disc she received had nothing on it and wasn’t viewable.

Last year, former Whitley County Attorney Paul Winchester filed an affidavit in the case stating that he gave Butcher a DVD with the footage.

Butcher contends that the DVD had nothing on it or couldn’t be viewed.

Williamsburg Police Chief Wayne Bird said that he found out about issues with Butcher getting the video on July 27, 2011, and sent a copy to her by certified mail, which her secretary signed for on Aug. 4, 2011.

Butcher asserts that this DVD was also blank or couldn’t be played. She entered copies of both DVD’s into the court record.

Irregardless, she contends that it wasn’t discovery evidence as ordered by the court in 2011 because police supplied it to her instead of prosecutors.

It isn’t the duty of police to provide discovery evidence to the defense and this is what the case law clearly states, she argued Thursday.

Judge White agreed with her.

"The city police did everything they could to save it. The city police cannot provide discovery. It has to come from the prosecutor’s office," Judge White said.

"Is that a standing order judge in this court?" Trimble asked.

"She just cited the case to you," Judge White responded.

After court Thursday, Bird was outraged White’s ruling.

"The arguments that they were making in there about an officer supplying discovery to a defense attorney is totally ludicrous," Bird said.

Bird said that two weeks ago, Judge White instructed him in the courtroom to provide defense attorney Paul Croley with a copy of the department’s road check policy.

"He didn’t say, ‘Officer, I need you to provide this to the prosecutor. He said, ‘will you supply this to Paul Croley?’ and I said ‘sure,’ and I gave it to Paul Croley," Bird noted.

"His whole argument about officers not being able to supply defense attorneys with discovery is horse crap. He himself instructed me from the bench to do that."

Bird added that this is how discovery evidence has always been supplied to defense attorneys in district court.

Bird said that his officers have never been asked by prosecutors in district court to supply discovery evidence to them.

"We’ve always been instructed by the court to supply it directly to the defense attorney," Bird said. "It’s ridiculous."

Although not happy with the case’s outcome, Bird said that he is glad the case is over.

When asked about her thoughts on the judge’s ruling, Butcher said as she was leaving the courtroom Thursday that "It’s the right thing according to the law."

Davenport declined to comment.

 

Problems in case

During the course of this case, three different people prosecuted the case.

Paul Winchester was the initial prosecutor in the case. Winchester was county attorney when Davenport was arrested on May 9, 2010.

On Oct. 7, 2011, he was appointed as circuit judge and later won a special election to fill out that term. He replaced Paul Braden, who died on June 3, 2011.

On Oct. 18, 2011, Don Moses was appointed as interim Whitley County Attorney. He was the second prosecutor to handle the case.

Trimble was appointed as special prosecutor after Moses recused.

Judge White blamed part of the problems in the case on Moses, whom he said had served as prosecutor for about six months before he recused himself on the day of the scheduled trial on Dec. 7, 2011, because he was a distant relative of Davenport.

White contended that Moses was county attorney during at least two hearings during late 2011 when the issue of Butcher not receiving discovery evidence was discussed and that he did not provided any discovery evidence to her and then recused himself as prosecutor on the day of the trial.

"If he had good cause to recuse, he should have done that months before," Judge White said.

White admitted that he probably dismissed the case in "haste" in 2011 because of his frustration with Moses and that Butcher had not been given discovery evidence.

"Maybe in hind sight I should have given the county attorney a continuance but I was extremely frustrated this case had been on this long," Judge White said during court Thursday.

White complimented Bird and Williamsburg Police Officer Brandon White, who was the arresting officer, for their efforts to keep the case moving forward.

"The two of them were working to help try to prosecute this case when our county attorney was dropping the ball," White added.