Pubdate: Sun, 15 Apr 2001 Source: Topeka Capital-Journal (KS) Copyright: 2001 The Topeka Capital-Journal Contact: http://cjonline.com/ Details: http://www.mapinc.org/media/455 Author: Steve Fry HECHT APPEALING MARIJUANA REVERSAL Case overturned based on sheriff's drug scandal. For once, it is the prosecutor who is saying "prove it." District Attorney Robert Hecht is trying to turn the table on a Topeka man whose drug case was overturned as a result of scandal in the sheriff's office. Normally, it is the burden of the prosecution to prove a defendant's guilt. But in this case, Hecht essentially wants the defendant to show that the drug scandal adversely affected his case. Shawnee County District Judge Charles Andrews on April 6 overturned the 1995 convictions of Donato Lorenzo Stough, 32, on one count each of possession of marijuana with intent to sell and unlawful use of a communications facility. Four days later, Hecht filed notice that he was appealing Andrews' decision to the Kansas Court of Appeals, which might not hear the case until 2002. Hecht said late last week he was appealing, in part, to question how long someone convicted of a drug offense is entitled to have his conviction overturned. Hecht wants the high court to issue a ruling should similar cases arise in the future. Stough sought to overturn his convictions based on a May 11, 1999, decision by District Judge Eric Rosen in the Carlos Hernandez case, in which the judge dismissed drug charges against Hernandez based on the defendant's claim that the chain of custody of marijuana evidence wasn't established because of "outrageous" conduct. The Hernandez case triggered a six-day evidentiary hearing concerning evidence of cocaine use by former sheriff's Cpl. Timothy P. Oblander; conflicting testimony about drug abuse, cocaine thefts and tampering of drug evidence in the sheriff's office; and allegations of corruption in the sheriff's office. In his ruling, Rosen called the conduct of a small group in the sheriff's office "outrageous," saying then-Sheriff Dave Meneley tried to cover up illegal activities by demoting, transferring and promoting deputies. Hecht said his appeal doesn't seek to reopen the Hernandez case and isn't a challenge of Rosen's ruling, which Hecht called "correct" and "courageous." But he said he was concerned people would construe the ruling as a "blanket exoneration" for convictions that were decided before the Hernandez case. Defendants at least should have to show evidence that the Hernandez ruling adversely impacted their case, he said. Hecht also is appealing the decision in the Stough case, he said, because nothing shows it was affected by facts or circumstances leading to the Hernandez decision. Hecht also questioned whether the district court had jurisdiction over the Stough case. Stough had completed his sentence and was no longer was under the authority of the court. Stough was at least the 10th drug defendant either to have his case dismissed or convictions overturned because of the sheriff's office drug scandal. An 11th defendant's case was dismissed when Oblander invoked the Fifth Amendment when called to testify while a deputy. Stough was charged in May 1995 with two counts of possession of marijuana with intent to sell and one count each of attempted possession of marijuana with intent to sell, conspiracy to possess cocaine, failure to pay the Kansas drug tax and possession of drug paraphernalia, and 13 counts of unlawful use of a communications facility. Of the 18 felonies and one misdemeanor, Stough pleaded no contest on Dec. 8, 1995, to possessing marijuana with intent to sell. A judge placed him on probation and ordered Stough to attend the Labette Correctional Conservation Camp, a boot camp. On July 7, 1998, Stough completed probation and had paid all fees. - --- MAP posted-by: Larry Stevens