Roanoke Times
Copyright (c) 1995, Landmark Communications, Inc.
DATE: THURSDAY, July 26, 1990 TAG: 9007260431
SECTION: VIRGINIA PAGE: B-1 EDITION: METRO
SOURCE: VICTORIA RATCLIFF STAFF WRITER
DATELINE: LENGTH: Medium
Judge John Apostolou said Kavanaugh's method of using underage college students as undercover agents was "clearly entrapment." He dismissed three charges against clerks at the Orange Market at Hanging Rock and the Hanging Rock Grocery Store.
It became apparent last month that the sheriff's efforts had backfired, possibly because the sheriff would not listen to advice from his officers and the county prosecutor.
Twenty charges were dismissed last month by county General District Judge George Harris, who said he thought the college students Kavanaugh used to purchase the beer looked 21 or older.
Prosecutors decided to try to get convictions on five remaining charges because they thought the evidence in those cases may have been stronger. But Harris dismissed two of those charges last week, and Apostolou dismissed the remaining three Wednesday.
In Wednesday's cases, Assistant Roanoke County Commonwealth's Attorney Bill Broadhurst argued that the clerks should be convicted because all three had asked to see the student's driver's license and had knowledge that they were selling to someone who was underage.
But Apostolou told Broadhurst that the cases were entrapment, because the police were the ones who brought the illegal element into the sale of the alcohol.
Harris and Apostolou also have expressed concern that many of the purchases were made last fall but the store clerks were not charged until several months later.
The undercover operation began in November with youth officers from the Sheriff's Department watching underage college students purchase beer at convenience stores, drugstores and grocery stores.
But Kavanaugh would not agree to conduct the operation the way prosecutors and his own officers wanted to conduct it, people close to the operation said last month.
"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," Commonwealth's Attorney Skip Burkart said in June.
The sheriff "assured me before they began the operation they would meet with me or someone in my office. That never happened," Burkart said.
Burkart said he had asked to meet with the college students before the operation to be sure they clearly looked 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."
Kavanaugh began the operation without having his officers consult with prosecutors. The sheriff also decided not to follow a suggestion by youth officers that they conduct "buy-busts," where clerks were immediately charged after the students made their purchase.
Kavanaugh feared that would tip off clerks in other stores, sources close to the investigation have said.
By December, the students had made 18 illegal beer purchases, but no one had been charged. Burkart had urged that warrants be obtained so the cases could be brought to court, Kavanaugh wanted to continue the operation, authorities have said.
Burkart was concerned 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," he said.
In April, officers began charging clerks with offenses that dated to November.
Burkart's fears were realized as the first cases went to court in June. Clerks testified that 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.
At least one clerk produced a time card to show she wasn't even working at the time she had allegedly made the sale.
One of the students testified that she didn't remember the specific purchase she was testifying about.
Burkart said that though these cases didn't result in convictions, he would be willing to work with police on similar operations in the future.
"The operation illustrates how lax some clerks are in selling alcohol," Burkart said after the first batch of cases were thrown out. "It underscores a problem that's in the community that needs to be dealt with.
"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