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Botany Bay Raid: Response to the Herald-Leader's Article 10/14/12
In Friday's article regarding last August's police raid on The Botany Bay on Winchester Road, the Herald-Leader got a number of things wrong. Again.
1. "According to court documents, police found more than 7 pounds of synthetic cannabinoids at The Botany Bay."
Court documents said that? I've seen the affidavit and the search warrant and see no mention of this. That aside, there wasn't 7 pounds of illegal anything there. If the police are saying this, they are flat out lying. What a surprise.
2. "Saville pleaded guilty to trafficking in synthetics and possession of drug paraphernalia in April 2011."
According to Saville and her attorney at the time, Pat Nash, the charge Saville had negotiated pleading guilty to was possession. Somewhere between negotiating and court, that charge was changed from possession to trafficking without notice to Saville or her attorney.
The fact is, had the state pursued a trafficking charge in 2011, they would have lost!
It is important to note here that the ONLY reason Saville pled guilty to anything from 2011 was to save her employees from felony convictions for possession and prison time. When the cops raided her store then, the vandalism was intense. Guns drawn, lasers pointing in the eyes of the young male employees. None of whom, unfortunately, knew their rights and didn't know better than to consent to a search. The cops intimidated them with threats and guns into allowing searches of their homes, cars and person, turning up small amounts of marijuana. All of which would be a misdemeanor today, thanks to HB463 passed two months after the raid. At the time, however, these were felonies. Ordinarily, felonies on young men found with pot would be negotiated down to misdemeanors. They would serve maybe a little jail time, get probation and fines and be let go.
In this case, however, because the cops had nothing on Saville, they used her employees' pending prison time to negotiate her into a misdemeanor possession charge. They told Saville, "If you don't plead to a misdemeanor possession charge (pot, not even synthetic cannabinoids!), your boys will be prosecuted to the full extent of the law."
Of course she pled guilty. The fine? $100.
**Why were the cops so keen to get her to plead to something? So they could keep the $100,000 in cash and merchandise they stole from her and prevent her from suing them for vandalism.**
They destroyed her store. We have pictures and will share them asap. This is how the system works, folks. Cops commit crimes, then extort the victims. Go sit in a courtroom one day and see who is being extorted for fines and property. They are overwhelmingly poor and non-white. It's a sick, twisted system we have here.
3. "When police charged Saville following the Aug. 20 raid, the citation indicated the charge was supposed to be a felony. However, it was incorrectly entered in the court's computer system as a misdemeanor, first assistant County Attorney Lee Turpin said."
Ok, this is flat out lie. It wasn't a mistake. They got nothing and are now desperately trying to make it something. Desperately. Why? See ** above. If they can't get her on a felony this time, they are so screwed.
4. "The county attorney's office filed a motion to amend it to a felony."
This should read, "The new young eager county attorney's office..." The simple fact is, he is not going to get a felony conviction here. Even if he tries really, really hard and looks really, really earnest while doing so. Saville wasn’t advised of her rights in 2011 -- we have the court recording. Wasn't done. So they cannot enhance the prior misdemeanor to a felony. Even the prosecutor, young and inexperienced as he is, KNOWS this will be overturned at the end of the day.
Apparently, however, he wants to go through the time-consuming and expensive process because, hey, it’s not costing HIM anything. In fact, there is no consequence for wasting taxpayer money for him at all. He gets to stay busy and have stuff to brag to the papers about. Meanwhile, it will cost Saville a pretty penny to defend herself. They are all very interested in that happening.
This is justice? 5. "Saville's attorney, Tucker Richardson, responded with a motion that the charge should not be Saville's second offense because she was not adequately advised of her rights — such as a right to fair trial, to confront witnesses and to appeal — before she pleaded guilty to the first offense last year."
These were not Miranda Rights. She was not arrested so no mirandizing was required. (Uh, she wasn't arrested because she didn't commit a crime.) The rights Richardson is alluding to falls under a different “advising you of your rights” situation. When you are considering a guilty plea to anything, your attorney must advise you of your rights and make as sure as possible that you understand all the ramifications. Particularly if the charge will be enhanceable to a felony for a second offense. Like trafficking is. Then, in court, at the moment you actually plead guilty, the judge has to go through the same procedure: “Do you understand that this is enhanceable? That the next time you are caught doing this, you could go to prison?” And, “Did your attorney explain all this to you, did s/he explain your rights?” Etc. We who were in court with Saville last Friday watched the judge do this over and over and over again. In Saville previous debacle, neither her attorney nor the new judge went through this process with her. When the judge asked, “How do you plead to Count 1?” Saville pled guilty, believing Count 1 was possession. That is what her attorney had negotiated. In fact, Saville and I verified this with him a couple of weeks ago. I sat in his office with Saville while he looked through his notes and found where he had written down that Saville was pleading to possession. Again: mysteriously, somewhere along the way between negotiation and court, that got changed from possession to trafficking. Had the Judge read Saville her rights, the Judge would also have spelled out what Count 1 was and the fact Saville was pleading guilty to trafficking would have been corrected. 6. "According to the warrant, Lexington police made two undercover buys of suspected synthetic drugs at Botany Bay before the Aug. 20 raid."
I wonder how they determined both buys were synthetic drugs since one buy was not tested and the other buy was found to be in compliance with current law. Stay tuned. This is getting interesting.
Tucker’s brilliant strategy is “first things first”: Ginny has to get the enhanceable part of the prior trafficking charge nullified. Because she wasn’t advised of her rights, they can’t enhance that one. The prosecutor has even said Tuck is right: this will be overturned at the end of the day. Apparently, however, they want to go through the time-consuming and expensive motions because it’s not costing them anything, there is no consequence for them – they just get to stay busy and have stuff to brag to the papers about. Meanwhile, it does cost Ginny and they are all very interested in that happening.