Leader Blues

Friday, November 06, 2009

EDITORIAL >> Prosecution gets slammed

Back in April 2007, when Lonoke County Prosecutor Lona McCastlain and her deputies charged former Lonoke Police Chief Jay Campbell with running a continuing criminal enterprise and propped her case up with a slew of seemingly unrelated criminal allegations, we thought she was overreaching.

That’s not how the jury saw it and neither did special Judge John Cole.

Campbell’s trial attorney, Patrick Benca, challenged McCastlain at every turn, asking for a directed verdict of not guilty and holding that there was no probable cause for the search warrant that garnered much of the physical evidence against Campbell and his wife.

Cole denied Benca and Campbell at each instance.

The jury found the Campbells guilty of a combined 49 criminal counts and recommended that the former chief be sentenced to 40 years in prison.

The Campbells asked to remain free on bond pending appeal. McCastlain argued successfully to lock them up immediately.

That was nearly 30 months ago.

Chief Justice Jim Hannah of the Arkansas Supreme Court, writing for the majority, on Thursday overturned the former chief’s convictions and remanded the case back to the prosecutor, now Will Feland, who is serving until McCastlain’s term expires next year.

The court ruled that there was insufficient evidence of a continuing criminal enterprise, said the judge erred in not dismissing the CCE charge and that there was, in fact, no probable cause for a search warrant of the Campbells’ home.

Kelly Campbell, the chief’s wife and co-defendant, was convicted of lesser offenses and received a 20-year sentence. She is eligible for parole next year but could be released sooner if her conviction is also overturned.

Here was a case of an energetic prosecutor overreaching. Who cannot understand the prosecution’s zealousness in the presence of rascality on such a large scale by a man hired by the people to protect them? It is a common failing of prosecutors, the impulse to throw everything at a crook in hopes that enough will stick that no jury would acquit him. But seasoned prosecutors learn that playing scrupulously by the rulebook is nearly always wise. It is certainly the safest. You don’t have outcomes like this.

The prosecutor introduced days of testimony about the sexual peccadilloes of the police chief’s wife, who used inmates and public facilities for her gratification. It made fascinating reading but, as the Supreme Court observed, it seemed to have nothing to do with the chief’s criminal labors and could have prejudiced the jury against him. The fruits of an illegal search were used against the chief, which the prosecutor should have known would produce a reversal.

Finally, there is the conspiracy statute, which produced the chief’s 40-year sentence. Conspiracy laws became popular in the 1970s because they gave federal and state prosecutors a new tool to nail underworld and public figures. You could round up a number of offenses and show that together they constituted a conspiracy, a “criminal enterprise,” which is worthy of a much longer sentence. The trouble is that conspiracies are hard to prove. The Supreme Court said Campbell’s trial fell far short of proving that all his crimes constituted a gang conspiracy controlled by the chief of police.

If the prosecution decides Campbell needs to be retried, it should be with discretion and care for the rules of jurisprudence.

There’s no doubt that the Campbells violated the public trust and the trust of friends, but defense attorney Benca says Campbell has served long enough and shouldn’t be retried, and we think maybe he’s right.