Roanoke Times
Copyright (c) 1995, Landmark Communications, Inc.
DATE: THURSDAY, June 14, 1990 TAG: 9006140602
SECTION: VIRGINIA PAGE: A/1 EDITION: EVENING
SOURCE: VICTORIA RATCLIFF Staff Writer
DATELINE: LENGTH: Long
The last 20 of almost 30 charges against store clerks were dismissed Wednesday by General District Court Judge George Harris, who has said he thinks the college students Kavanaugh used to purchase the beer looked at least 21, the age at which alcoholic beverages can be purchased in Virginia.
Prosecutors still will try to get convictions on four remaining charges because they think the evidence in those cases may be stronger.
But Harris and Judge John Apostolou also have expressed concern that many of the purchases were made last fall but the store clerks were not charged with making the illegal sales until months later.
Apostolou also has questioned whether the cases might be considered entrapment because of the manner in which they were set up. Apostolou said the police were the ones who brought the illegal element into the sale of the alcohol.
The undercover operation began in November with youth officers from the sheriff's department watching underage college students purchase beer at convenience stores, drug stores and grocery stores in the county.
But Kavanaugh would not agree to conduct the operation the way prosecutors and his own officers wanted to conduct it, several people close to the operation have said.
The sheriff first approached Commonwealth's Attorney Skip Burkart in the fall to tell him about his plans for the sting operation.
"I told him that I would like to meet with whichever officers were going to be conducting the investigation and the individuals they were going to use to make the buys so we could get everything worked out ahead of time," Burkart said this week.
The sheriff "assured me before they began the operation they would meet with me or someone in my office. That never happened," Burkart said. "We never had any input in these cases until the warrants were obtained.
"Except for presenting these cases, my office was not involved in the planning, the supervision or the direction of this operation. This was totally directed, supervised and put on by Mike Kavanaugh," he said.
Burkart said he had asked to meet with the college students before the operation to be sure they clearly appeared to be younger than 21.
"I didn't want to run into any entrapment arguments. I wanted to go over what they were going to say, what they were going to do."
But Kavanaugh began the operation without having his officers consult with prosecutors.
Youth officers told the sheriff then they thought the purchases should be made as "buy-busts" where the students went into the stores and purchased the beer and then an officer went in immediately afterward and charged the clerk who sold it.
But the sheriff didn't want to handle the cases that way because he thought it would tip off clerks in other stores to the operation, sources close to the investigation have said.
By December, the students had made 18 illegal beer purchases at stores around the county, but no one had been charged.
That month, one of the youth officers called Burkart and asked what he thought they should do with the cases they already had made. Burkart urged the officer to get warrants in those cases so they could be brought to court.
But the sheriff wanted to make more cases before he brought charges against any of the clerks, authorities have said.
Burkart was concerned then about the time that had passed between the illegal purchases and the charges being brought. "The longer you go in time, the more unreliable identifications get, the worse your memories get. My point was, if you're going to make an impact, make it with the cases you've already made," he said.
Others approached Kavanaugh with concerns about the way the operation was being handled.
The administrative management team that had been set up by the county to handle the transition from a sheriff's department to a police department began hearing concerns from officers about the way the operation was being handled, said Assistant County Administrator Don Myers, a member of the team.
The transition team discussed the officers' concerns and then Myers called Burkart. On March 23, Myers wrote Kavanaugh a letter asking him to discontinue the operation and bring charges against the clerks who had sold the alcohol.
Kavanaugh sent word to the management team by his chief deputy saying that he was going to continue with the operation, Myers said.
In April, officers began charging clerks with offenses that dated back to November. The first cases came to court this month.
Clerks appeared in court and said they couldn't remember making the sales because they occurred so long ago. Several said they would have asked the students for identification if they had thought they looked to be under 21 years of age.
At least one clerk produced a time card to show she wasn't even working on the day she had allegedly made the sale.
One of the students testified that she didn't even remember the specific purchase she was testifying about.
Another of the students gave the judge a driver's license that he said he showed the clerk when he made one of his purchases. The driver's license had been issued six weeks after the purchase allegedly was made.
It was after that case that Apostolou told Burkart to go back and review the evidence in his remaining cases. If the evidence in the remaining cases was not any better than what he already had heard, Apostolou said, he suggested that Burkart drop the other charges in order not to waste the court's time.
Kavanaugh refused to comment on the operation this week, saying the investigation was continuing and that cases were pending.
But Burkart said there was another side to the story. "The operation illustrates how lax some clerks are in selling alcohol. It underscores a problem that's in the community that needs to be dealt with," he said.
"When two out of three stores sells alcohol to these kids without carding them, then we have a problem. I'm ready, willing and able - if the new police chief wants to continue with the operation - to meet with him or his officers and discuss how we can attack this problem."
by CNB