Pubdate: Saturday, 13 Mar 1999 Source: Topeka Capital-Journal (KS) Contact: http://cjonline.com/ Copyright: 1999 The Topeka Capital-Journal Author: STEVE FRY The Capital-Journal DRUG CHALLENGES LOOM AFTER CURRENT CASE ENDS Carlos Hernandez isn't the only drug defendant investigated by Shawnee County sheriff's narcotics officers to ask a judge to strike down his case. Two defense attorneys recently said three clients want to challenge their drug convictions based on the disappearance of drugs in other cases investigated by sheriff's narcotics officers. And Wednesday, Abdelmonim E. Yousif, 42, Topeka, sought to reverse his convictions for cocaine trafficking. The evidentiary hearing in the Hernandez case has focused on former Cpl. Timothy P. Oblander's cocaine use, cover-up of Oblander's drug use, and allegations of corruption in the sheriff's department, theft of drug evidence and tainting of other drug evidence. Oblander resigned on Feb. 26, three days before admitting he had been treated for a cocaine problem and not just alcoholism as he earlier contended. Hernandez, who is charged with a misdemeanor count of marijuana possession and a felony drug tax stamp violation, is asking a judge to dismiss the case based on contentions there was misconduct by deputies and a break in the chain of evidence in the marijuana confiscated in his case. On Dec. 16, District Judge Thomas Conklin met with about 20 defense attorneys to mull over how to best handle criminal cases potentially impacted by missing or tainted drug evidence in the sheriff's custody. At that meeting, Conklin told defense attorneys to scan their files of clients from Jan. 1, 1994, to July 1996 to find cases investigated by sheriff's narcotics officers, then contact the district attorney's office to request more records. Other defense attorneys said they either hadn't found any clients investigated by the sheriff's narcotics investigators specified in a Kansas Bureau of Investigation report, or the clients didn't want to seek to overturn the convictions. Defense attorney Matt Works said he expects to file requests in several weeks seeking to overturn the drug convictions of two men. Works said he would try to examine a list specifying which deputy investigated which drug case during the time frame. Sheriff Dave Meneley compiled the list of cases and investigators after District Judge Eric Rosen ordered him to do so. In the Yousif case, he pleaded no contest and was convicted of cocaine trafficking charges when part or all of the drug evidence was missing, according to Shawnee County District Court records and the KBI report. Yousif didn't knowingly enter his no contest pleas on Aug. 30, 1996, according to Robert Eskildsen, assistant public defender. He was unaware that alleged evidence in the case was missing or stolen, even though that was known to the sheriff's department, the KBI and the district attorney's office, according Eskildsen. It isn't an attorney's choice whether to reopen a case that already has been resolved, lawyer Bruce Harrington said. "I would have no legal or ethical responsibility to pursue it without their consent," he explained. "I could not pursue it without the client's knowledge." In 1997, Harrington defended a client charged with cocaine trafficking, who told him 75 percent of the cocaine confiscated from him was missing compared to the amount testified to in court by a sheriff's narcotics officer. An attorney has an ethical obligation to contact a client who has been convicted of an offense to tell him or her a past conviction possibly could be overturned because of newly discovered developments, Harrington said, but the client has to decide whether to pursue a remedy. In the survey of Topeka attorneys, several said they hadn't found any clients with cases investigated by deputies during the 218E2-year time frame. At least one private attorney is waiting to see whether charges against Hernandez will be dismissed before he researches whether any of his past clients might be impacted. "I don't want to spend two to three weeks in court doing what (Hernandez' public defenders) are doing," attorney Eric Kjorlie said. "My clients don't have the money to do it." At $125 an hour for an attorney, spending two to three weeks in court for 10 to 12 hours a day in attorney's fees would cost $12,500 to $22,500, according to Kjorlie's figures. Not all clients want to revisit their drug cases, Harrington said. Harrington said he had found two clients who had been convicted of offenses investigated by the sheriff's department, but the two didn't want to try to overturn the convictions. Each client decided the convictions were water under the bridge, he said. "It's not my choice," he said. "It's their case, their life, their criminal record. They don't want to retread those waters." In Kansas and federal courts, offenders are sentenced to prison according to the severity of the crime and the number of past convictions. "Criminal history is a very important component of how long someone will serve," Kjorlie said. It can mean the difference between presumptive probation for someone with a previously clean record and presumptive prison for someone with one or more earlier convictions, Kjorlie said. - --- MAP posted-by: Rich O'Grady