Source: Cincinnati Enquirer (OH)
Contact: http://Enquirer.Com/editor/letters.html
Website: http://enquirer.com/today/
Pubdate: Tue, 08 Sep 1998
Author: Anne Michaud - The Cincinnati Enquirer

DRUG SEIZURE LAWS RIPE FOR ABUSE

Police tactics bring cries for reform

On New Year's Eve, Adam Townley sold marijuana to an undercover police
officer. He would end up paying for it with his car.

Eager to gain ownership of Mr. Townley's two-door 1990 Nissan -- taken
during his arrest -- Fairfax police agreed to a deal in which two counts of
drug trafficking against the 20-year-old from Union Township in Clermont
County were reduced to a lesser charge.

Police holding drug-raid loot Mr. Townley got his freedom. The police got
the Nissan.

The exchange, though perfectly legal under drug forfeiture law, raises
questions about the legitimacy of such tactics and the zeal with which some
police agencies pursue material goods enjoyed by the drug dealers they
arrest.

Clermont County Sheriff A.J. "Tim" Rodenberg, a former prosecutor, calls it
"let's-make-a-deal justice."

"It almost looks like a person is buying his way out of a punishment," he
said. "Say you catch a different person doing the same thing a month later,
and he doesn't have a car to turn over. So he's got no bargaining chip."

Mr. Townley's case and scores of others illustrate how drug forfeiture laws
are in need of change, say lawyers and experts in Ohio and nationwide.

The laws allow police to seize property that is thought to be a tool of a
crime -- such as Mr. Townley's Nissan -- or things that may have been
bought with profits of drug dealing, such as houses, jewelry and boats. The
property is converted to cash at auction. Cash is also commonly seized.

The prosecutor and law enforcement agencies share the proceeds, and they
use the money to pay for more investigations, arrests and prosecutions.
Millions of dollars are at stake in Ohio alone, and the incentive for
police to seize property is just too strong, some argue.

This incentive can cause problems:

Police can seize property that appears to be disproportionate to the crime.
In one case, Cincinnati police took $8,500 from an Avondale woman who had a
small amount of marijuana in her apartment.

Because most forfeiture cases are heard in civil court, low-income people
who challenge a forfeiture have no right to a court-appointed attorney.
Challengers must prove their innocence. In criminal court, the burden of
proof is on the government.

Law enforcement can win a civil property forfeiture even if the defendant
is found not guilty of the crime that led to seizing the property.

John Murphy, executive director of the Ohio Prosecuting Attorneys
Association, defended the last point.

"There may not be enough to convict on drug trafficking because the burden
of proof may be much higher, but the court may be satisfied that these are
the proceeds of drug money," he said.

The criticism of drug forfeitures is not unique to Cincinnati or Ohio. At
the federal level, a coalition including defense lawyers and conservative
organizations is fighting to strengthen defendants' rights.

The National Association of Criminal Defense Attorneys would have courts
appoint attorneys for people who cannot afford them and would shift the
burden of proof to law enforcement. Law enforcement would have to show by
clear and convincing evidence the seized property is connected to drug
dealing.

In the Townley case, the agencies that approved the deal -- Fairfax police
and the Hamilton County prosecutor's office -- shared the proceeds. By
longstanding agreement with local police agencies, the prosecutor takes 20
percent.

Fairfax Police Chief Richard Atkins said his office turned the case over to
the prosecutor, and he could not answer for the outcome. "As far as how the
prosecutor's office handles these cases, I have no control over that," he
said.

But he did say throwing a car into a plea bargain was common, and he did
not find the result unfair.

"You talk about fair. Is it fair for this guy to come into Fairfax and sell
our people drugs?" Chief Atkins said.

Defense attorney Raymond Faller, who represented Mr. Townley, contends
Fairfax police, not the prosecutor, were the ones pushing for the car. (He
advised Mr. Townley not to be interviewed or photographed for this story.)

James Harper, chief deputy prosecutor, defended the deal and said Mr.
Townley had retained an attorney, knew his rights and should not have felt
pressured to give up the car.

"We are not in the business of squeezing property out of people. If you're
going to take a plea, fine," Mr. Harper said. "This fellow apparently
thought that what he was doing was in his own best interest because he was
guilty.

"That's what the plea means: "I was selling drugs out of this vehicle.' "

Property is used in plea bargaining every day in courtrooms here, said
Cincinnati defense attorney Thomas Miller. Once, in Texas, he turned it to
his client's advantage.

The client had been driving a rental car when he was arrested with a large
amount of cocaine. When it became clear the local sheriff wanted the car,
Mr. Miller said, his client bought it and used it to bargain.

"We kept this guy out of jail," he said, "for a $15,000 car."

Innocent people hurt

People who feel safe from a drug-related arrest or seizure may be surprised
to learn about Juanita Hazley, a 32-year employee of the U.S. Postal
Service.

In July 1997, she lent one of her two cars to her son, Robert Chappell Jr.
She thought he was using it to travel to his job at a delivery service and
to visit Children's Hospital Medical Center, where his 10-month-old son was
dying.

With such family trouble, it never occurred to Ms. Hazley that her son,
then 31, would be meeting a customer to sell crack cocaine. The customer
turned out to be a police informant wearing a hidden microphone.

Springfield Township police seized the car, a 1985 Nissan, arguing that Ms.
Hazley knew her son was dealing drugs. Police would have to release the car
if Ms. Hazley could show she knew nothing of the crime.

"I'm not that kind of parent. If he's selling drugs, don't do it around
me," she said during an interview at her Forest Park apartment. The
nine-month court battle cost her $2,500, but she won.

"It was more the principle than the car," Ms. Hazley said. "How can you
take something of mine like that?"

Autos seized often

The financial stake in recovering drug assets is high.

Cincinnati police collected $1.2 million in 1996, the latest year for which
the department could provide figures. The Hamilton County sheriff's office
received $425,521 in 1997 and the county prosecutor $233,294.

Cars are by far the most frequently seized property. Some are sold at
auction, and police use others as official vehicles.

One Cincinnati defense lawyer, Stephen Felson, said the horse trading for
those assets is blatant. He once saw a note attached to a forfeiture case
that informed the judge that the police needed the vehicle in question for
undercover work.

David Smith, a national expert on forfeitures, said such incentives lead to
bad seizures.

"The department benefits," said Mr. Smith, a former deputy chief of asset
forfeiture for the U.S. Department of Justice. "Most forfeitures are OK in
terms of proof, and most people don't have a problem with taking away the
proceeds of drug profits.

"There are bad cases. There's a big incentive for (police) to make bad
seizures, to take the law into their own hands, in effect." Drug dealers
have gotten wise to this incentive, said former Assistant Police Chief Ted
Schoch of the Cincinnati Police Division, who oversaw drug forfeitures
until July, when he took over the police training academy.

"The crooks have gotten smarter. They lease cars rather than buy. They use
a rental car that wouldn't be worth our while to take," he said. "The great
thing is when we find a paid-for vehicle." But do police sometimes go too
far? In one developing case, three lawyers have charged that Cincinnati
police are shaking down residents, mostly in Over-the-Rhine and Walnut
Hills, taking their money and charging them with misdemeanor marijuana
possession.

The confiscated cash in six cases ranged from $1,131 to $8,500, according
to the lawsuit filed June 24 in U.S. District Court by
constitutional-rights lawyer Scott Greenwood and brothers Stephen and
Edward Felson. The brothers share a law practice.

The suit, which seeks class-action status, names nine Cincinnati police
officers and the city as defendants. The lawyers want police to give back
the money along with attorneys' fees.

But mostly, these lawyers said, they want the practice to stop. It twists
the intention of drug forfeiture law, Mr. Greenwood contended, which is to
target drug dealers.

"These people aren't even charged with trafficking," he said. "People who
possess (marijuana) for personal use are not the dealers," he said.

Stephen Felson said such cases often go unchallenged. Many people can't
afford a lawyer and they do not want to make themselves targets of police
retaliation. He claims police focus on poor, black neighborhoods for these
reasons.

"Most of these cases are defaulted because the person doesn't want to deal
with it," Mr. Felson said. "Kiss it goodbye, almost." Karl Kadon, a deputy
city solicitor for Cincinnati, said he thinks police were investigating
drug crimes in each incident cited. He said the city is conducting its own
investigation into the allegations because of the lawsuit.

Money from a Bible

Even a defendant who is acquitted of the crime and challenges the
forfeiture commonly pays something to law enforcement.

Defense lawyer Victor Dwayne Sims said he represented an elderly woman
whose boyfriend was a suspected drug dealer. Cincinnati police picked him
up at her apartment and confiscated her possessions: a couple of purses and
$1,500 she kept in her Bible.

Police found a Valium in her purse and charged the West End woman with drug
abuse. The woman was cleared of the charge but lost her subsidized
apartment, which had rules about drug use among tenants. Police returned
all but about $200, which the police kept, Mr. Sims said.

"We had to bargain to get her money back. A lot of times, it's like a
compromise: You keep some property and return some," he said.

Like other defendants in property forfeiture cases, the woman had to prove
she had some way of obtaining money, other than by dealing drugs. In this
case, she had a job.

The case left Mr. Sims with a sour taste for forfeitures, he said. "It's
not about guilt or innocence," he said. "They deprive people of their
property rights before they've had an opportunity to be heard. That's
inherently unfair."

U.S. Rep. Henry Hyde, R-Ill., chairman of the House Judiciary Committee,
has prepared a bill that would reform asset forfeiture in all its forms.
There are more than 100 federal statutes authorizing forfeiture, for such
things as money laundering, contraband and abandoned property in addition
to drug crimes.

His legislation is up against opposition from the Justice Department and a
collection of law enforcement groups.

"The Department of Justice is trying to block this; the police chiefs are
allied against this," said Mr. Smith, the former justice department
official. "They see it as an assault on their pocketbooks."

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Checked-by: Joel W. Johnson