DUI case against former deputy jailer reinstated ... for now
The legal saga over whether a former Whitley County deputy jailer should stand trial over a 2010 drunk driving charge continues.
Last Wednesday, Whitley District Judge Fred White agreed to reinstate careless driving and driving while under the influence charges against Lloyd E. "Oscar" Davenport.
Davenport's attorney, Jane Butcher, filed a notice Tuesday indicating White's ruling will be appealed to Whitley Circuit Court.
Butcher said the case is being appealed to circuit court because Davenport feels White ruled in error.
Currently the case is scheduled to be tried later this year in Whitley District Court.
On May 9, 2010, Williamsburg Police Officer Brandon White arrested Davenport, who at the time was a Whitley County deputy jailer. Davenport is no longer employed at the jail.
On Dec. 7, 2011 during a court hearing, White agreed to dismiss the charges because Butcher had informed the court that former Whitley County Attorney Paul Winchester, who is now a circuit judge, hadn't provided her discovery evidence in the case.
At the time, interim Whitley County Attorney Don Moses recused himself from the case, and the prosecution wasn't represented during the hearing.
White issued a written order dismissing the charges on Dec. 14, 2011.
Williamsburg police, who were upset by the ruling and the fact that the commonwealth wasn't represented during the hearing, asked Kentucky Attorney General Jack Conway to appoint a special prosecutor in the case.
On Dec. 15, Conway appointed Commonwealth's Attorney Allen Trimble as special prosecutor.
Trimble filed a motion to set aside the order of dismissal on Dec. 21. White granted the motion last week, and Butcher is now appealing White's latest ruling to circuit court.
Butcher contends that Trimble filed the motion to reinstate the charges too late, and this is why his motion should have been denied.
Butcher argued in court filings that prosecutors only had 10 days after the entry of dismissal was filed to ask that the ruling be set aside, which they didn't do.
Butcher contends that the Kentucky Supreme Court has ruled that the time for taking appeal from judgments begins to run upon notation by the clerk on judgment on the criminal docket, which was Dec. 7.
Trimble contends that the clock for filing the motion to set aside the judgment didn't start ticking until White entered his written order on Dec. 14, which means his Dec. 21 motion was filed in time.
Trimble filed two affidavits in the case when he asked for the case to be reinstated. One was from Winchester and the other from Williamsburg Police Chief Wayne Bird, who each say that Butcher was provided with discovery evidence in the case.
"I was aware of the claim of counsel for the defendant that she had not received the discovery in this case," Bird wrote. "Even though I believed the discovery had previously been delivered, I took it upon myself to confirm with the county attorney that he personally delivered a copy of the discovery to defense counsel, and then I mailed the same discovery to defense counsel by registered mail."
Trimble's motion included a copy of the certified mail receipt and the return receipt that indicated delivery was made on Aug. 4.
On Jan. 20, Trimble filed an affidavit by Winchester, who stated he gave Butcher the discovery evidence.
"Though I am unsure of the exact date, I specifically recall providing discovery personally to counsel for the defendant, Jane Butcher," Winchester wrote in the affidavit dated Jan. 19. "As I handed the discovery to Jane Butcher, which contained a video tape, I recall commenting to her that the audio on the tape was not good, but the video was good. The above action was done in Whitley District Court."
During an interview Tuesday, Butcher strenuously denied that she provided misleading information in court and said the discovery evidence she was given was simply unusable.
"You can't hear anything on it. He gave me a CD. I've never denied that I got a CD, but it didn't have anything on it that could be used," Butcher said. "In this case, I did not lie. I didn't misrepresent anything to the court in this regard. I've never done that in the 31 years that I've been at this and I'm not going to start now with a DUI case."
The evidence in question consists of police dashboard video camera footage of the traffic stop and Davenport's subsequent arrest.
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