MONDAY, JUNE 22, 1992

Defense in Indiana trial calls prosecutor, sheriff


The Saline County prosecutor and sheriff testified last month as defense witnesses at a Benton man's drug trial in Indiana.
On May 16, Prosecuting Attorney Dan Harmon and Sheriff Larry Davis testified on behalf of Kevin DePriest. Harmon spent half of last year defending himself against allegations of corruption and drug trafficking. Davis has campaigned for reelection in the past on strong anti-drug platforms.
A federal jury in Evansville, Ind., convicted DePriest on a charge of conspiracy to possess with the intent to distribute methamphetamine in a quantity greater than 1,000 grams. He is imprisoned in Indiana, awaiting sentencing.
According to testimony accounts from the prosecutor who handled the case, as well as Davis and Harmon, both men testified that although they didn't personally know DePriest, they didn't believe him to be a drug dealer. Davis and Harmon also testified that DePriest's lifestyle and his work as a self-employed plumber were inconsistent with a person selling drugs.
DePriest was indicted in November 1991 with five other men in what was described by authorities as a multimillion-dollar drug operation stretching from California to Benton to Evansville. More than 70 pounds of methamphetamine were allegedly brought to Evansville through the operation between 1985 and 1990.
Davis and Harmon were subpoenaed to testify by DePriest's attorney, David E. Smith of Benton. Smith represented Harmon at his trial last month on four misdemeanor charges of failing to file federal income tax returns. Harmon was found guilty on one count but hasn't been sentenced. Harmon ran unopposed for reelection In May's Democratic primary. Although subpoenaed, Smith said Harmon and Davis weren't necessarily reluctant witnesses.
"Not in the sense that I had to drag them up there," Smith said. "They were reluctant in the sense that they did check (DePriest) out before they agreed to testify and there was no evidence that he was ever involved in any drug dealing."
Smith said both men received "witness fees and expenses as required." "He said he couldn't remember the exact amount of the witness fee but said it was a standard fee between $30 and $35. Harmon and Davis said they didn't receive a witness fee but had their expenses paid. Davis drove to Indiana and Harmon flew, Smith said.
Smith said neither Harmon nor Davis had ever met Depriest before the trial. He also said he didn't think it was unusual for law enforcement officials to testify in such a capacity.
Law enforcement officials customarily honor their subpoenas and don't concern themselves with the technicalities Smith said.
Harmon and Davis both said they had been called before as defense witnesses to answer questions about investigations but had never testified about someone's reputation before.
"Did I find them to be reluctant witnesses?" asked John Thar, an assistant U.S. attorney with the Southern District of Indiana who prosecuted the DePriest case. "Not the way they testified."
Thar said it struck him as odd to see a county prosecutor and sheriff testifying in the defense of an accused drug dealer.
"I have not ever seen it and I've been involved in drug prosecutions since 1982," Thar said.
"I have seen law enforcement officers called by the defense to testify as to what they did in an investigation. ... I've never seen either (a sheriff or prosecutor) come in and testify that not only they've never heard a particular person's name but because they've never heard it, they knew he was not a drug dealer. That was what was so surprising. And the sheriff was much stronger on that than was Harmon. Harmon modified a lot of what he had to say."
Thar said Davis who testified in uniform, was adamant in saying he would know if DePriest were selling methamphetatmine. Under cross-examination, Thar said, "I asked him, 'Are you saying that Kevin DePriest doesn't fit the mold of being a drug dealer or are you saying he absolutely is not?'"
Thar said Davis replied, "Iím saying he is not a drug dealer. If he was I would know."
Harmon testified he found the charge against DePriest surprising because he also had never heard DePriest's name mentioned as a drug dealer or user when he was a special deputy prosecutor for a 1988 Saline County grand jury. The grand jury was convened to investigate a possible drug connection in the deaths of two Benton teen-agers on railroad tracks. About 450 drug users and dealers were interviewed during the course of that inquiry, Harmon testified.
In a phone interview Wednesday, Harmon said, "The only thing I testified to was that I had just never heard of the boy."
Asked if he had any reservations about testifying for an accused drug dealer, Harmon said, "As an officer of the court, I have a duty to honor subpoenas."
"I didn't hesitate to go testify," he said. "I never hesitate to go testify truthfully about anything. It's not my duty as a lawyer or prosecutor to get people convicted, it's my duty to see justice is done and the truth is told."
Explaining his involvement, Harmon said Smith mentioned that a Benton client, DePriest, was facing drug charges in Indiana and Harmon expressed surprise because he had never heard of him.
"I had him checked out and we didn't have any kind of information on him of any sort," Harmon said. "I suggested to David he talk to Larry Davis and to the state police."
Thar said he knew that Smith had represented Harmon at a tax trial at which Harmon was convicted, but was barred by the defense from introducing that information at trial.
Davis said Wednesday he "absolutely," stood by his testimony.
"I don't feel like Mr. DePriest is involved at all," Davis said. "Because if he's dealing that much methamphetamine, as many drug arrests and as many informants as I have, I would have heard his name.
Davis criticized the case against DePriest, citing a lack of physical evidence. He said he had "lost faith in the federal system," which he believes takes shortcuts in drug cases.
"I couldn't take the word of just two or three people -- already jammed up on drug charges and they're turning around and pointing the finger at this individual," Davis said. "The U.S. government can take testimonial evidence and not have any physical evidence and indict a person on just the words of other people and possibly send an innocent person to prison."
DePriest was convicted largely on the strength of testimony from two men, Darrell Taylor, a former Saline County resident, and David Foster of Evansville. Both men admitted being part of a methamphetamine trafficking operation. After their arrests, Taylor and Foster cooperated with the government and named DePriest as one of those involved in the operation. Taylor was sentenced to 14 years in prison, Foster to 11.
Phone records linked DePriest to the informants, but his defense maintained the calls were easily explained because DePriest was helping maintain a house in Saline County for Taylor.
At the trial, Thar said DePriest admitted to using methamphetamine some with Taylor when he lived in Saline County and acknowledged some marijuana use. But Thar said DePriest maintained he had never been involved in selling or possessing drugs.
Davis testified that since be became sheriff in 1989 and during his tenure before that as deputy, he had never heard allegations that DePriest was selling drugs.
But Davis' chief deputy, Jerry Easom, said there had. been past allegations that DePriest was growing marijuana at his rural Saline County home. Davis acknowledged this week that those allegations had been made and that a marijuana eradication mission had been flown over DePriest's house. Davis said nothing was found, leading him to believe the allegations were baseless.
"I'm not of the opinion that he is a drug dealer, but I am not of the opinion that he is not," Easom said of DePriest. Since the trial, DePriest and others have become targets of a sheriff's office narcotics investigation, Easom said.
Smith cited the fact that the jury deliberated for nine hours before returning a guilty verdict as evidence that the case against his client was weak.
Smith said his client would probably appeal the conviction "based upon the insufficiency of the evidence."