Pubdate: Thu, 07 Jul 2005
Source: Muskogee Daily Phoenix (OK)
Copyright: 2005 Muskogee Daily Phoenix
Contact: http://www.muskogeephoenix.com/customerservice/contactus.html
Website: http://www.muskogeephoenix.com/
Details: http://www.mapinc.org/media/3319
Author:  Donna Hales
Bookmark: http://www.mapinc.org/af.htm (Asset Forfeiture)

AUDITOR: DA FORFEITURES 'A MESS'

Muskogee County District Attorney John David Luton's office continues
to violate state forfeiture laws, the state auditor said Wednesday.

For three years Luton's office has forfeited property without a court
order, failed to keep a complete inventory of seized items or receipt
or deposit funds seized years earlier, according to state audits for
2003 and 2004 released Wednesday by the State Auditor and Inspector's
Office. Similar findings were noted in a 2002 audit.

"I haven't found any (district attorney forfeitures) that were in this
big a mess," said State Auditor and Inspector Jeff McMahan. "I don't
know of any that have had these problems. This has been about as bad
as I've heard of."

Luton's office established necessary procedures for the accountability
of seized funds but doesn't always follow the procedures, McMahan said.

One deposit dated June 9, 2004, included funds from six forfeiture
cases filed during the years 2000 and 2001 but were "neither receipted
nor deposited until June 9, 2004," the 2004 audit states.

"It's the same story - they just aren't keeping records, and we're
going to keep recommending they do," McMahan said. "We haven't seen
any progress ... it's up to the DA to correct it. My hope was that it
would be corrected once we filed it (2002 critical audit), but that's
not the case.

"I've never run into this situation - I haven't seen one that
continued for three years like this."

Auditor finds lack of court orders

At some point, Luton's office has to do better, McMahan said, adding a
state auditor found that many times Luton's office forfeited items
although the court hadn't issued an order to do so as required by law.

"There were things confiscated that we can't track, mainly
miscellaneous items, like stereos and guns," McMahan said Wednesday.
"We don't know where they went. There were no records kept. It's not a
good situation."

Luton refused to meet with state auditors after the 2002 audit, saying
his chief investigator and office manager, Gary Sturm, was in charge
of forfeitures and he would meet with the auditors.

But Luton did meet recently with a state auditor about the 2003 and
2004 audits, McMahan said.

"He (Luton) didn't say a whole lot, other than 'we'll do better,'"
McMahan said. "It's not getting any better."

McMahan said if he had someone in charge of the inventory in his
office and if there were problems and they weren't corrected, "I'd
find somebody new. That's just common sense. I don't know who takes
care of that for him, but they're not getting the job done."

The person answering the phone in Luton's office Wednesday said she
assumed Luton was on vacation because he had not been in the office
all week. No one answered the phone at his home and there was no
recording device to leave a message.

Luton said earlier Sturm is in charge of forfeiture records. But Sturm
has repeatedly refused to comment about two pending civil racketeering
lawsuits filed last year in federal court in Muskogee against him,
Luton and Luton's drug task force. Plaintiffs allege in those cases
that their belongings were illegally seized and sold.

Sturm refused again Wednesday to return calls.

Attorney general aware of problems, auditor says

McMahan said Oklahoma Attorney General Drew Edmondson was made aware
of the critical 2002 audit of forfeitures in Luton's district and that
he would receive the 2003 and 2004 audits. Edmondson was out of his
office Wednesday and couldn't be reached for comment.

Edmondson's director of communications, Charlie Price, and First
Assistant Attorney General Tom Gruber were asked Wednesday what the
attorney general could or would do about Luton's alleged failure to
follow state forfeiture laws. Gruber said he would have to study the
current audits before he could comment and did not have those audits
yet.

Within minutes, McMahan's office hand-delivered copies of the 2003 and
2004 audits to Edmondson's office. Price said Gruber would not have a
response Wednesday.

McMahan said state auditors could tell Luton the situation needs to
change "until we're blue in the face, but that doesn't necessarily
mean they're going to step up and correct anything. They (Edmondson
and Luton) are friends - maybe he (Edmondson) can get their attention
and explain how important this is."

When Edmondson resigned as Muskogee County district attorney in March
1992 to campaign full-time for Oklahoma's 2nd District congressional
seat, Luton, an assistant district attorney under Edmondson, was named
by then-Gov. David Walters as Edmondson's successor. He has never had
an opponent in subsequent elections.

Appearance of impropriety cited

When auditors keep finding forfeiture cases filed when no criminal
cases are filed, it gives the appearance people may have been told "we
won't file charges against you if you turn over (money and
belongings)," McMahan said. "Whether it's happening or not, it gives
the appearance of impropriety. Whether or not he's doing it, we can't
determine. It would take an investigation outside of the state
auditor's office."

Bob Kline, director of county audits for McMahan's office, said that
by law district attorney forfeitures have to be audited every two
years, but in counties the size of Muskogee "we try to audit annually."

Money forfeited needs to be put in a bank account for safekeeping in
case the court orders it returned, Kline said. Procedures provide for
the timely deposit of seized cash to an evidence seizure account, he
said.

"They need to get that money in safekeeping, in banks, as quick as
they can."

State auditors don't look at every transaction, but at a random
sample, so there could be many more instances of forfeited money
laying around and never receipted nor deposited, Kline and McMahan
said.

Victims have recourse through civil suits

Tahlequah attorney Nate Young III said other than the attorney
general, he believes the only people who can do anything in case of
illegal forfeitures is the people subjected to those illegal
forfeitures.

A former Cherokee County assistant district attorney, Young said his
office was always very concerned to dot all i's and cross all t's
because otherwise it could open the county up to civil suits, as in
Luton's case.

"More than likely, there might be a conference made with the State
Auditor's Office and the Attorney General's Office to try to work the
issue out and find out what the potential to taxpayers might be," Young
said.

When asked what taxpayers concerned about the forfeiture audits could
do, Oklahoma Bar Association General Council Dan Murdock said in some
circumstances citizens could seek a recall petition for an elected
official or petition for a county grand jury.

Also, other law enforcement agencies, such as the Oklahoma State
Bureau of Investigation or the FBI might be persuaded to conduct an
investigation, Murdock said.

Since the Attorney General's Office is defending Luton in the civil
racketeering cases in federal court, he said he's not sure how viable
complaints to Edmondson's office would be.

Sidebar

Forfeiture statutes

Criteria for findings in state audits of forfeitures in 2003 and 2004
by Muskogee County District Attorney John David Luton's Office's
Property Forfeiture Fund are listed in the audits as:

"Title 63 O.S. 2001, =A72-506.B. requires a 'notice of seizure and
intended forfeiture proceeding shall be filed in the office of the
clerk of the district court for the county wherein such property is
seized and shall be given all owners and parties in interest.' Title
63 O.S. =A72-506K. requires 'a true and accurate inventory and record
of all such property seized.' Title 63 O.S. =A72-508.C. requires the
district attorney to file a petition with the courts requesting the
authority to convert title of the property to the district or to
conduct a sale of the property. The petition shall have a list
attached describing the property, including all identifying numbers
and marks, if any, the date the property came into the possession of
the district attorney, and the name and address of the owner, if known."
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