Pubdate: Sun, 10 Dec 2006 Source: Austin American-Statesman (TX) Copyright: 2006 Austin American-Statesman Contact: http://www.statesman.com/ Details: http://www.mapinc.org/media/32 Author: Tony Plohetski, American-Statesman Staff DRUG CONVICTION THROWN OUT BY JUDGE; OFFICER UNDER INVESTIGATION Defense Attorney Says Officials Told Him 'Something Tainted' Arrest. A judge has thrown out a man's felony drug conviction after internal affairs detectives and prosecutors began reviewing how an Austin police officer handled the man's August arrest. Authorities are trying to determine whether officer James Learmonth had probable cause to search Ernest Smith after a traffic stop in East Austin and whether he was truthful in police reports and court documents in describing the incident, Tom Stribling, who is representing Learmonth, said Saturday. Smith complained to Austin police about the arrest after pleading guilty to drug charges in September, said Smith's attorney, Keith Lauerman. He declined to discuss what his client told police in the complaint. Officials with the Travis County district attorney's office then contacted Lauerman and recommended that he seek to have the conviction overturned because they said they thought "something tainted" Smith's arrest, Lauerman said. The charges' dismissal comes the same week that officials said they are investigating an officer's use of force earlier this year against a man who has mental retardation. The investigation is also looking into how officer Gary Griffin's supervisors reviewed the incident and why they concluded that the force was justified. Stribling declined to comment further on the investigation involving Learmonth, and prosecutors said they could not discuss an ongoing investigation. Acting Police Chief Cathy Ellison could not be reached Saturday. State District Judge Bob Perkins said he threw out Smith's conviction on a charge of possession of a controlled substance Friday at the request of prosecutors and Lauerman, who cited possible violations of the U.S. and Texas consti-tutions. Perkins said he did not know the specifics of the possible violations. Lauerman said Learmonth wrote in court documents that he pulled Smith over after seeing what he thought was a drug transaction and that during a search, he found more than a gram of cocaine. The attorney said Smith pleaded guilty to the drug charges and accepted probation because he feared that a jury trial would result in a prison sentence. Smith also pleaded guilty to unrelated charges of unauthorized use of a motor vehicle and drug possession, Lauerman said. He said he had been unaware that Smith had concerns about how the officer handled the arrest until after the guilty plea. Learmonth was investigated and cleared last year after he and a fellow officer stopped a car with a defective taillight and then chased the driver, who police said fled on foot. During the chase, the man fired several shots at them, police have said, and Learmonth's fellow officer returned fire but didn't hit the man. The second officer also was investigated and cleared. - --- MAP posted-by: Elaine