By Jason Riley and R. G. Dunlop
The Courier-Journal
Sunday, November 24, 2002

SHEPHERDSVILLE, KY. -- Some 200 people charged in Bullitt County with felony crimes such as rape, drug-dealing, fraud, and murder, have escaped prosecution in the past two decades because of a flawed judicial system that has misplaced, mismanaged and delayed cases.

A Courier-Journal examination of criminal court files dating to 1983 found that human error, antiquated record-keeping and scheduling lapses have frustrated victims while letting those who otherwise might be found guilty remain free.

The long list of defendants whose cases are still unresolved years after their arrests or indictments includes William Westbay, indicted in July 1985 on a murder charge; Jackson Hugh Vincent, charged in 1987 with repeatedly raping and sodomizing a 14-year-old girl; and Marilyn and Michael Muench, a husband and wife who pleaded guilty to drug charges more than seven years ago but have never been sentenced.
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Bullitt Circuit Judge Thomas Waller said that as a result of a Courier-Journal investigation, he recently directed the commonwealth's attorney to review all open criminal cases filed before 2000 and recommend what to do with them.

During the newspaper's six-month investigation, reporters analyzed more than 400 court-case files, docket sheets and records of grand jury proceedings. They also interviewed dozens of attorneys, defendants, victims, police officers, court officials and others.

While Bullitt County, like most of the country, has a goal to clear all felony cases within a year, the newspaper reviewed only cases that were pending for at least three years.

Among the newspaper's findings:

The two officials most responsible for moving cases through the court system, Bullitt Circuit Judge Thomas Waller and Commonwealth's Attorney Mike Mann, acknowledged responsibility for the backlog.

Both said they were unaware of the large number of pending cases until the newspaper presented them with its findings.

Waller, who became circuit judge in 1992, and Mann, who was elected commonwealth's attorney later that year, said they made no effort to keep track of unresolved cases.

Mann conceded that some cases do "slip through" the system and others simply are lost.

Because of the newspaper's investigation, Waller said, he recently directed Mann to review all open criminal cases filed before 2000 and recommend what to do with them.

Clyde Conover, who was a burglary victim in 1989, is still waiting for the case to be resolved.

Mann and Waller indicated that many cases may be dismissed, in part because so much time has passed since the alleged crimes occurred.

Other old cases will be scheduled for trial as time permits, both said.

A trial would please Clyde Conover, a 61-year-old preacher and former store owner who was a burglary victim in 1989.

While a suspect was arrested and released on bond, nearly 13 years later Conover is still waiting for the case to be resolved.

"I was having to take time out of the store and go over to the courthouse and every time they would just lay it over for the next month," Conover said. "It made me angry. The judicial system failed me."

Massive Case Backlog

Bullitt's numbers huge compared to most others

Unlike most other states, Kentucky has no rules governing how quickly criminal cases should be resolved once an indictment is returned by a grand jury.

Even so, the backlog of criminal cases in Bullitt County is extraordinary, at least compared to virtually all other Kentucky counties.

Only two counties in the state, Trimble and Lawrence, have a higher percentage of pending criminal cases dating to 1995, the first year for which statewide records are available, according to the Administrative Office of the Courts, which manages Kentucky's judicial system. The actual number of old criminal cases in those counties is far smaller than in Bullitt County.

Moreover, in total number and percentage of pending cases, Bullitt County exceeds the state's two largest counties, Jefferson and Fayette.

From 1995-2000, Bullitt County had 161 pending criminal cases -- 21 percent of the total cases -- compared to 151 in Jefferson, which is 1 percent, and 37 cases in Fayette, which is about 1 percent), according to the state courts' office.

For a six-year period, from fiscal years 1995-1996 through 2000-2001, 200 more criminal cases were filed in Bullitt Circuit Court than were disposed of.

In 2000-2001 alone, 172 new criminal cases were filed. But 107 cases were disposed of, according to the Prosecutors' Advisory Council, which allocates state money to commonwealth's attorneys around the state.

That was the fourth-lowest rate among the state's 56 judicial circuits, some of which consist of more than one county.

The council's records show that during the past six years, Bullitt County has never ranked higher than 48th among the 56 circuits in terms of criminal cases disposed of in circuit court.

Part of the reason for the backlog, Mann said, is that following an arraignment, a court date is only assigned after the commonwealth's attorney or a defense lawyer files a motion to bring the case back up.

The newspaper found that criminal cases often were not put back on the court's calendar, and effectively disappeared.

By contrast, in Jefferson County, among others, court cases routinely are assigned a hearing or trial date at arraignment so attorneys and defendants know when they are expected to return.

Mann acknowledged that his office's record-keeping is in disarray, with an outdated system of file folders and cabinets instead of a computer database to monitor cases.

Mann also said he has requested additional help, including another assistant prosecutor and secretary, but for budget reasons has been denied.

"I wish we could keep up better, and I think we've started to do some things that have helped," he said.

Bullitt's court procedure is how most courts across the nation worked until the 1980s, said David Steelman, principal court management consultant with the National Center for State Courts, based in Williamsburg, Virginia.

In the past two decades, however, with court dockets became crowded, so, most courts began to monitor cases closely from the time of arrest, constantly scheduling a date for each case and prioritizing the older ones, he said.

"This way the case is always coming up on someone's schedule book or the court's calendar book or the computer," Steelman said. "You don't lose a case that way."

Albeit, defense lawyers, who have no legal or ethical obligation to push cases, acknowledge using the Bullitt County system to their clients' advantage.

"The legal theory in this county is, sometimes you just don't kick the sleeping dog," said Fred Friske, a former Bullitt County District Court judge who now practices law in Shepherdsville. "If the defendant is out on bond and everything is fine, (the cases) more or less lie dormant."

System Failure

After initial work, nothing else happens

The breakdown in the system occurs at virtually every part of the process.

Court records obtained by the newspaper showed that in many of the 230 pending cases, motions were often filed and hearings and trials were scheduled and then postponed, before all activity stopped.

But in about two dozen cases three or more years old, there was no recorded legal activity of any kind after the defendants made their initial circuit court appearances and entered not guilty pleas and were released on bond.

No motions were filed. No hearings were held. No trials were scheduled. The defendants and their lawyers never came back to court. Those cases were simply lost in the system.

Waller said he would not have tolerated that had he known about it.

"Every time they would just lay it over for the next month. It made me angry. The judicial system failed me."

"Why don't you take those cases to Mr. Mann and ask him?" the judge said.

Mann was unable to explain what happened to those cases, but speculated that they were not as high a priority as others. "We're a little overwhelmed with cases at this point," he said.

The two dozen cases include Jayson Baker, 26, who was indicted in 1997 after he allegedly fought with a Shepherdsville police officer while intoxicated.

Baker's case has sat idle since his arraignment and not-guilty plea in June 1997.

Dennis Boyd has had to live in the burned mobile home after Robert Grant allegedly destroyed it with fire in 1999. Boyd is still waiting for justice.

Robert Grant, 42, has not returned to court since he was arraigned in April 1999. Grant was indicted on a charge of first-degree arson.

His alleged victim, Ray Dennis Boyd, has lived in part of the chard remains of his mobile home since the fire on Jan. 27, 1999.

"Since then, I haven't heard a thing," Boyd said. "Grant was in jail about a minute and never went to court. The case has just disappeared. It hurts my feelings more than anything else because evidently my life ain't worth anything."

Mann said that the case has not been ignored but that he could not discuss why Grant has not been tried.

In another category of cases the newspaper found still open, defendants or their attorneys wanted to negotiate a plea agreement with the state, or actually did so, but Mann's office never followed through.

Ray Dennis Boyd has lived in part of his burned-out mobile home since an alleged arson fire in 1999. The man charged in the fire has not been back in court since he was arraigned.

"The case has just disappeared," Boyd said. "Evidently my life ain't worth anything."

Richard Clark, 29, was indicted in November 1995 on charges of stealing, wrecking and burning a car. His co-defendant pleaded guilty to a misdemeanor and agreed to make restitution. Mann's office was prepared to offer Clark the same terms, according to a letter in court records from Clark's attorney, William Yesowitch.

Although Yesowitch advised his client the deal was a viable offer, it was never done. Mann said he didn't know why. Mann said the case should have been dismissed anyway after a key witness changed her testimony.

In another case, Eric John Burlet, 22, was indicted in May 1998 on burglary and drug charges. In March 1999, his attorney negotiated a plea agreement. Mann's office agreed to recommend probation for Burlet, according to a handwritten note attached to the court file. But there was no guilty plea.

Mann said he couldn't remember why. "It just didn't get done," he said.

Marilyn and Michael Muench of Brooks did plead guilty in August 1995 to drug charges stemming from a 1991 indictment. But they were never sentenced. They're still waiting.

"My attorney said as long as they don't bother me, don't worry about it," Michael Muench, 51, said. "So I don't worry about it."

Mann said he had no idea why the case had not been put back on the docket.

The couple could still be sentenced for their crimes from 11 years ago, but they also could ask to withdraw their pleas, Mann said.

Lost Cases
Records unattended in court file drawer

The newspaper found that Circuit Court cases were not the only ones that fell by the wayside.

Felony cases usually originate in District Court and are sent to a grand jury following a probable-cause hearing.

But at least 56 cases dating to the early 1980s that were sent from District Court to the grand jury also weren't disposed of properly, if at all, the newspaper found.

The cases were left in a drawer in the circuit court clerk's office in the old Bullitt County courthouse. There is no evidence that any defendant was indicted or cleared. Only a handful of these cases were ever even heard by the grand jury.

Pending Charges

Chart shows a summary of the charges brought against at least 200 defendants whose cases were reviewed by The Courier-Journal. In many cases, defendants faced more than one charge.

 
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