Pubdate: February 5, 1999 Source: Topeka Capital-Journal (KS) Copyright: 1999 The Topeka Capital-Journal Contact: http://cjonline.com/ Author: Steve Fry The Capital-Journal MISSING MARIJUANA PROMPTS REQUEST TO DISMISS CASE Citing alleged misconduct by Shawnee County sheriff's narcotics officers in 1995 and a break in the chain of custody of marijuana confiscated in a drug case, a public defender wants the case dismissed. The request to the Shawnee County District Court to dismiss the drug case against Carlos Hernandez was filed Thursday by Kris Savage, the public defender assigned to the Northeast Kansas Conflicts Office. Hernandez is charged with felony failure to pay the Kansas drug tax and misdemeanor marijuana possession. During a preliminary hearing Jan. 20, the drug weighed almost 0.5 ounce less than when it was confiscated in January 1995. On Jan. 20, a judge denied Savage's initial request to dismiss charges. "Because of obvious and egregious misconduct by sheriff deputies during the time of the Hernandez case, any testimony by these deputies concerning the chain of custody is inherently suspect," Savage wrote in the appeal. The court can't ensure Hernandez' fundamental right to a fair trial, Savage said. In the appeal, Savage summarized the 1996 Kansas Bureau of Investigation probe into the theft of 0.75 ounce of cocaine from a sheriff's department property room. Savage included allegations and denials that Cpl. Timothy P. Oblander had taken and tampered with drug evidence, that drugs were missing from Oblander's canine training aids, that Oblander disappeared in May 1995 and that Oblander had invoked the Fifth Amendment when called to testify at an inquisition July 26, 1996. Oblander denied stealing cocaine from the sheriff's department evidence locker, denied being a cocaine user and denied telling Meneley that he stole the cocaine and was a cocaine user. Oblander said he used the Fifth Amendment during the inquisition and again Nov. 23, 1998, during another drug preliminary hearing to avoid disclosing past alcohol problems. In the challenge to throw out charges against Hernandez, Savage cited a Dec. 11, 1998, news conference by Meneley, noting the sheriff called statements by three of his deputies lies. In a prepared statement at the news conference, Meneley said statements by some deputies that he knew who took cocaine from the evidence locker in 1994 were "a lie." The statements of detective Scott Holladay, the primary investigator in the Hernandez case and a deputy who told KBI agents that Oblander's partner related to Holladay that Oblander had a cocaine problem and had entered an alcohol-drug treatment program and that Meneley knew about the problem, didn't dovetail with Meneley in the KBI investigation, Savage said. Holladay passed a polygraph test in the missing cocaine case. District Attorney Joan Hamilton has given Meneley until Sunday to give her a "reasonable and detailed explanation" of why the marijuana weighed less or her office would join the defense in a motion to dismiss the case against Hernandez. Based on examinations of other confiscated drugs in the property room, there can be "shrinkage" of 15 percent to 30 percent in marijuana due to drying, Meneley has said. Meneley has said Keith Coonrod, an expert from the New York City Police Department, would audit the sheriff's department evidence room, including drugs, on Saturday. Coonrod will make recommendations based on his findings, Meneley said. A KBI probe was triggered by the disappearance in 1994 of cocaine from the sheriff's department evidence locker. At Hamilton's request, the attorney general's office ordered the KBI to investigate the case in 1996. However, the attorney general's office concluded there wasn't enough evidence to prosecute anyone. - --- MAP posted-by: Joel W. Johnson