
                         Roanoke Times
                 Copyright (c) 1995, Landmark Communications, Inc.

DATE: WEDNESDAY, March 20, 1991                   TAG: 9103200493
SECTION: VIRGINIA                    PAGE: B7   EDITION: EVENING 
SOURCE: Associated Press
DATELINE: BIG STONE GAP                                LENGTH: Medium

JUDGE QUESTIONS WISE ATTORNEY'S BROAD POWERS

U.S. District Judge Glen Williams says people are being deprived of their constitutional rights in Wise County because the commonwealth's attorney also serves as a special assistant U.S. attorney.

Williams criticized the unusual arrangement after dismissing the charges against two brothers accused of manufacturing marijuana.

Williams said Wise County Commonwealth's Attorney Tim McAfee was being "vindictive" in his prosecution of one suspect. Williams also said federal charges were filed against the second to cover his unsuccessful prosecution of the same case in state court.

McAfee said Tuesday that he is withholding comment on the judge's order questioning his dual office holding until he meets next week with U.S. Attorney E. Montgomery Tucker. Tucker was not in his Roanoke office Tuesday.

Marshall Edward Belcher and Patrick Lee Belcher of Pound were indicted by a federal grand jury in 1989 on charges of growing, harvesting and possessing marijuana with the intent to distribute the drug.

State officials, however, destroyed the alleged marijuana before any tests were performed and before the trial in state court. McAfee dropped the state charges and later obtained the federal indictments.

Williams said in a ruling issued last week that he has never known an elected state prosecutor to be a federal prosecutor at the "same moment in time."

Uniting the powers in one person, the judge said, essentially does away with the concept of a state-federal government and creates a "super sovereign" or central government.

Williams said such a system "works to deprive a citizen of fundamental rights."

"The kind of power McAfee possesses here is inconsistent with the concepts of federalism implicit in the Constitution," Williams wrote in the 19-page opinion.

Williams said it is normal for state and federal prosecutors to yield to one another in the pursuit of a case. If the state prosecutes a case, for example, the federal government normally will not. And if both do begin a prosecution, upon termination of one's prosecution the other party drops the case, he said.

"Unfortunately, McAfee's actions stand in sharp contrast to the normal practices regarding dual prosecutions," the judge wrote.

Williams recounted a federal case in which McAfee tried to convict two people on drug charges. Both were acquitted.

McAfee then obtained indictments for the same charges in state court against one of the defendants. She later pleaded guilty.

Williams said he is not advocating that federal and state prosecutors not work together in battling crime.

"The case," he said, "simply indicates that state and federal functions can become so blurred and intertwined that distinctions between the two sovereigns can no longer be made."

by CNB