West Fork, Arkansas: January 24, 2004 Shortly after midnight while driving to their mother’s home on a highway near Gurdon October 29, 2002, Eric Wells and his brother Johnny were stopped by State Trooper David Forthman of the Arkansas Highway Police. The Wells brothers did not know that a light was out on the vehicle. When the officer came to their window to alert them to the missing light, he noticed an odor he attributed to marijuana. Requesting that the men get out of the vehicle, the officer searched the car and found nothing. He then searched Eric and again found nothing. He then asked Johnny if he had any drugs on him and Johnny admitted that he did.

Johnny produced a plastic bag containing four and one-half ounces of marijuana that he had hidden in his underwear. There were also wrapping papers and a rolled joint in his pocket. The officer arrested Johnny and placed him in his car for the fourteen-mile drive to Arkadelphia. Eric followed along behind in his own car, hoping he could do something to help his brother.

Upon his arrival at the county jail, Eric was arrested. Officer Forthman stated that Johnny had told him on the way to Arkadelphia that the drugs were Eric’s, not his. While en route, Officer Forthman had notified the drug task force with that information and was instructed by the task force to arrest Eric. Both Eric and Johnny were then booked into jail on charges of possession of a controlled substance, marijuana, with intent to deliver.

And so began the latest chapter in the life of Eric Wells, an African American Arkansan with a history of substance abuse. Previous encounters with Arkansas law enforcement included prison time for crack cocaine and hot checks. But Eric has never been a violent offender. In fact, he believes that with the right kind of help, he could remain gainfully employed and fulfill his desired role as a good father and husband. Instead, he may become yet another member of the swollen Arkansas prison population where half of the inmates are African American.

It is not because African Americans in Arkansas are more likely to commit crime than are their white fellow citizens. Statistically, researchers report that whites and blacks are equally likely to commit crimes especially in cases of substance abuse. The difference, as shown in Eric’s case, is that blacks are less likely to be "connected" to the local power structures in which they find themselves entangled. Therefore, they are more likely to be arrested, prosecuted, and to be unable to secure a "vigorous" defense. By default, African-American Arkansans find themselves at the mercy of a disinterested if not prejudiced array of justice system personnel. The result is a justice and prison system expense that is bleeding the State of Arkansas of tax dollars that otherwise could provide a more adequate education for its children.

Both Eric and Johnny were without significant means of support, so on November 4 2002 an Affadavit of Indigency was filed on their behalf and public defenders were appointed to serve as their counsel. The district had only two public defenders available. One of them, Alan LeVar, was appointed to represent Eric and the other, Blake Batson, was appointed to serve Johnny. Eric entered a plea of ‘not guilty’ and bond was set at $25,000. Partial bail was raised by his family and friends in an arrangement where the remainder was to paid out in weekly installments. In fact, Eric’s mother and another friend put up personal property as collateral. After a week in jail, Eric was released but Johnny remained in jail. But at Johnny’s hearing three days later, his bond was reduced to $2500. He was able to pay the $250 required for his release.

Four days later, a Motion for Discovery was filed by Alan LeVar. Evidence produced included a report from the arresting officer, a lab report from Cindy Moran regarding the confiscated substance verifying that the substance was marijuana, and a report from Pete Dixon of the drug task force. Officer Forthman’s report states that "when Eric got out of the vehicle his pant’s zipper was unzipped." In spite of Officer Forthman’s later statement about Eric’s zipper, he had not acted on this information to arrest Eric at the time of the incident nor had he said anything about it to Eric.

On November 18, an order setting trial date and producing an arrest tracking record was entered to the court records. A jury trial was scheduled for January 27, 2003. Two weeks later, Eric’s lawyer entered a motion for a continuance. Subsequently, an order was issued to hear motions on February 3, 2003, with the jury trial rescheduled for February 24.

Discovery information was noted on the court record January 7, most likely transmittal to Eric’s attorney of the evidence described above. A judgment order was recorded January 21, followed by subpoenas being issued for David Forthman, Pete Dixon, and Cindy Moran who would serve as witnesses in Eric’s prosecution.

Summons were issued February 20 with Proof of Service noted in the court record four days later. On the same date, a subpoena was served to Johnny Wells, also to testify in Eric Wells trial.

At some point, the date not noted on the court docket, Eric’s trial was continued to the week of March 17 on motion of the defendant’s attorney. On March 3, the jury trial was scheduled for March 17. On the same day, a motion was made by Alan LeVar to be relieved as Eric’s attorney. On March 5, the court relieved him. Again on March 7 a second order to relieve Mr. LeVar as Eric’s public defender was entered on the court record. None of this information was presented to Eric.

Since March 2001, Eric and his family had resided in Dallas Texas. Aside from his arrest in October of the following year and other occasions of his family visits to Arkansas, Eric’s work and daily life were carried out in Texas. Therefore he was not on hand in the community of Arkadelphia where he might have more readily accessed court information about his case.

Eric’s spouse Gail contacted Mr. LeVar to ask questions regarding his upcoming trial at which time Mr. LeVar told her he no longer represented Eric. On March 7, he then faxed a copy of the order withdrawing counsel to her office. Prior to this faxed order, Eric had not received any information from Mr. LeVar regarding the trial or withdrawal of counsel, nor had he received any notification from the court regarding Mr. LeVar’s withdrawal.

When asked why he withdraw from Eric’s case, Mr. LeVar responded that Eric had posted a $25,000 bond, implying that Eric’s financial status disqualified him from the services of a public defender. Eric was not notified about any motion pending to relieve Mr. LeVar as his counsel, nor was Eric allowed any opportunity to rebut the decision with information about the hard-pressed family and friends who had raised the necessary money for Eric’s bond. Judge Thomas’ order relieving counsel was signed a little over a week before the scheduled trial, leaving Eric inadequate time to retain counsel in preparation of a defense.

In a letter to Judge Thomas, Eric asked the judge to appoint him another public defender. He was not informed that only two public defenders were available in that district, one who could not serve since he was serving Johnny, and other who had just withdrawn. At the same time he sent a Motion to Nolle Pros. if his request for another public defender was for some reason not approved. It was only later that Eric learned that no other public defender was available.

Eric filed his own amended answer to Withdrawal of Counsel and submitted a Motion for Continuance on March 18. A new date of April 7, 9 am, was set for motions, with the trial scheduled for April 21. The defendant was ordered to appear on April 7 with his counsel. The criminal docket notes that "Defendant made $25K bond" even though Eric explained in his Motion for Continuance and his Amend Answer Withdrawal of Counsel that bond had been made by family and friends. The bondswoman, Kathy Chism, knew he was in Dallas. His motions were being filed from Dallas, and his faxed letters to Judge Thomas were from Dallas.

The court made no response to his letters. In a phone call to the Judge’s office in an effort to gain a response to his requests, Eric was told that the Judge had granted the Motion for Continuance but that the Judge had been ‘too busy’ to read the other Motion (Nolle Pros.). Eric asked if another public defender had been appointed, to which the judge’s office replied they did not know. They suggested that he call the prosecutor’s office, which he did. He spoke with Becky, the prosecutor’s secretary. He told Becky that Judge Thomas’s office had suggested that he call and speak with them because he wasn’t sure if another public defender had been appointed to him. He pointed out that he had not received any response to his several requests and did not know if his case was going to be dismissed. He reiterated that he did not have money for an attorney and hoped to be appointed another public defender. He explained that he had just started a temporary job and could not easily make a trip back to Arkadelphia if it was not absolutely necessary. Becky stated that Eric should not worry about it, she would give Prosecutor Henry Morgan the information. She stated he should call him back April 8 to find out if the case was going to be dismissed.

Eric made the April 8 phone call, contacting Becky again to ask about the status of his case. Becky put Henry Morgan on the phone, who told Eric a warrant for his arrest had been issued because he had not been present for his April 7 court date. Alarmed, Eric called Judge Thomas’ office. The judge stated there was nothing he could do.

On April 11, Eric received papers addressed to his mother’s house in Arkadelphia which named the April 7 court date and the April 21 trial date. The papers also named Alan LeVar as his court appointed attorney. While court officials claimed the papers had been belatedly sent to Eric via his mother’s house because they did not know where he lived, they evidently knew he had been living and working in Dallas because arrest warrants and extradition papers were sent there.

On April 17, Eric was arrested in Dallas as he was returning to his residence. He was turning onto his street when an officer stopped him. The officer said he stopped him because he did not see a license plate on the front of the car and then noticed that the car had an Arkansas license plate instead of Texas. The officer ran the license and discovered there was a warrant for Eric’s arrest. This story seems questionable, given that the car was registered to Gail and there was no "cause" for the stop such as speeding. At any rate, Eric was held at the Lew Sterett Justice Center in Dallas for several days and then was transferred to a smaller facility nearby.

Eric was held for two weeks in Dallas and then extradited back to Arkansas. At Arkadelphia on the day of the hearing, Gail met with the man representing the Buddy York Bonding Company who told her that if she paid the $300 extradition fee, the judge would release Eric. Once Eric appeared before Judge Thomas, however, the judge denied the Motion to Recuse and the Motion to Nolle Pros. and gave Eric 30 days in jail.

After approximately one week in jail, Eric ruptured his patella tendon while playing basketball with other inmates. He was transported to the county’s contracted physician, Dr. Blackman, and learned that the knee would require surgery. He was immediately released from jail. When Eric was picked up from jail by his sister, he asked her to drive him to Dr. Blackman’s office. Dr. Blackman then called Sheriff Tucker to obtain authorization of payment for services, which the Sheriff denied. Eric then returned to Dallas where ultimately he underwent knee surgery at Parkland Hospital at a cost of $6479.56. Eric also incurred an initial emergency room expense of $522.70 at Baylor Hopsital for a new splint upon his arrival from Arkansas. The emergency room physician stated that the knee had been incorrectly treated in Arkadelphia with an insufficient split, causing the knee to become extremely swollen.

Eric has retained an Arkansas attorney while remaining in Dallas and continuing rehabilitation for his knee. He has regained only 68 degrees of movement in the knee while 135 degrees is the normal range of movement. Clark County Arkansas officials have so far failed to reimburse Parkland Hospital for Eric’s knee treatment expenses.

Eric’s new trial date has been set for January 29, 2004. His brother Johnny entered a plea bargain with a guilty plea and received five years probation. A recent drug test for Johnny resulted in a positive screen for marijuana. Observers note that Johnny will no doubt be subpoenaed to testify against Eric even though in his plea bargain he told the court that the marijuana had been his and that he had stated it belonged to Eric only because he was afraid and under the influence at the time of his incriminating statement.

To date, the State of Arkansas has invested at least one hundred manpower hours in the prosecution of Eric Wells for marijuana he did not possess, including state police officers, jail clerks, jailors, prosecutors, public defender, judge and judge staff, and court clerks. Additional costs in Eric’s current prosecution are his loss of employment, the bonds and fines paid by family members and friends, and his costs in responding the various court orders and in retaining his own attorney. It is debatable whether his knee would have been injured had he not been jailed.

Eric is one of twelve children and is 38 years old. He played football for Arkadelphia High School, received several scholarships and attended college two years. He has two children, Erika (10) and Riquelle (8) who live in Arlington, TX. In 1989 at age 24, Eric was prosecuted and sentenced to ten years on a conviction for possession of crack cocaine; he served six months at boot camp. In 1995, he took his sister’s handgun and pawned it for $20 in order to buy a "rock." The pawnshop owner contacted the police and Eric was then sentenced to 18 months to run concurrently with the ten years of his previous sentence. He served six months of which three months were served in the county jail and three months in state prison.

Upon his release, Eric remained "clean" until March 1997 when he was charged for forgery on a $50 rent check. He also wrote checks on his own account for which there were insufficient funds. Prosecutors offered him a two year sentence in the Department of Community Punishment which would have required one year of incarceration, but Eric chose to take a three-year sentence which would require him to serve only six months. He received an additional ten year sentence with seven suspended on the hot check charges. The checks totaled approximately $700 but the fees incurred brought the total to about $2000. If Eric had been able to pay the additional $1200 in fees the charges would have been dropped, but he did not have the money.

Eric’s prior involvement in Arkansas criminal justice systems have cost at least $70,000 in direct costs alone. His new (old) public defender, Alan LeVar, believes that if convicted on the current charge, Eric may face a mandatory minimum sentence of over 40 years. At an estimated cost of over $40,000 per year for each Arkansas incarceration, Eric’s future cost to the state could exceed $1.6 million.

In a long tradition of disregard for throw-away members of the community, Eric’s experience in this unnecessary arrest and tangled prosecution is a disgrace to the notion of justice and a flagrant misuse of public funds. Without question a less disenfranchised member of the community might not have been prosecuted in the first place, but even if prosecuted would have been able to secure legal representation who would never have allowed the various transgressions that have led to Eric’s current status. It is obvious that his current jeopardy and risk of a long prison term is as much the fault of administrative and legal malfeasance as it is any wrongdoing on the part of Eric Wells.

Clearly new approach to substance abuse is desperately needed, one that would shift away from criminal justice and toward medical treatment. Disadvantaged individuals and families must be given the tools by which to pursue a better life, rather than remaining dependent upon drugs that provide a temporary sense of well being. Criminal justice only heaps greater burdens upon an already burdened individual and family, essentially creating a guarantee that he/she will never be able to overcome the obstacles in the path toward improvement. By shifting the state’s resources toward a less harmful approach to drug policy, taxpayers would enjoy the benefits of a better educated generation of children while at the same time recognizing direct improvement in the prospects of persons with substance abuse problems who need adequate treatment.

The problems of disenfranchisement, inadequate education, and substance abuse are rarely isolated cases. Consider Eric’s sister, Sheila, currently incarcerated in McPerson Unit in Newport, AR on charges related to crack-cocaine use. Alan LeVar, the same public defender, represented her. Eric and Gail intervened on her behalf when she was first charged and asked that she be sent to rehabilitation and she was able to go. The brief time of state-provided rehab proved inadequate, however, and after being home approximately three months she relapsed and took $15 worth of make-up from a dollar store. The manager pressed charges. Again friends and family pleaded that she be sent back to rehab as most users do relapse but she was given fifteen years by Judge Thomas. Her long time partner and father of her 13 year old son just recently returned home after being in jail for a year on drug related charges as well. He was incarcerated and released without ever receiving any rehabilitation. Their son stays with Eric and Sheila's mother.

######