Dismissed DUI charge against ex-official may be reinstated

Monday, July 18, 2005 | 9:37 a.m.

District Judge Donald Mosley on Friday sent a case back to a Henderson Municipal Court judge to reconsider whether a DUI charge should be dismissed against a former state Parole and Probation Department administrator.

The Henderson city attorney's office had asked Mosley to reinstate the misdemeanor charge against Edward G. Henderson. The city argued that Henderson Municipal Court Judge Ken Proctor improperly dismissed the case on March 24 when a prosecutor wasn't ready to proceed with the trial.

In his ruling, Mosley said "there was a lack of communication in the Henderson court system" about who was prosecuting the case and its trial status and described how attorneys in the courtroom were "blind sided."

Mosley said Proctor may not have known all of the facts in the case when he made his ruling to dismiss the case with prejudice, meaning the city couldn't refile the DUI charge. The rehearing will allow Proctor to consider information and documentation not available to him that the city attorney's office used in its appellate argument to get the case reinstated, Mosley said.

"I am not going to make it (the decision) for him," Mosley said.

Assistant City Attorney Dave Mincavage said he's happy with Mosley's ruling because the city will now get a chance to argue why Proctor should allow the trial to proceed. He declined further comment, saying the case is pending.

Linda Norvell, one of the attorneys representing Edward Henderson, called on Mosley to reject the city's argument for the case to proceed to trial. She said she wasn't upset with the ruling.

"We are not disappointed at all," Norvell said. "We look forward to allowing the judge to consider it again. The judge's decision will be the same ultimately."

If Proctor rules against the city, Mincavage has the option of returning to Mosley and have him rule on the appeal. Mincavage said a hearing in Municipal Court will likely be held in either September or October.

The dismissal of the case against Henderson, who at the time of his arrest was district administrator of the state Division of Parole and Probation, drew cries that favoritism was involved.

Those accusations were denied by city officials who said no preferential treatment was involved. The city attorney's office put the onus on Proctor in court briefs by saying he improperly dismissed the charge by siding with a defense attorney's, Bill Terry, request to "circumvent the law."

Although not cited by the city in its arguments, Terry, represented Proctor in 2002 when he and Henderson Municipal Judge John Provost sued the city demanding bigger wage increases. The two ultimately dropped the case.

In his argument to Mosley, Mincavage concedes that the city wasn't ready for trial on March 24 but said the court calendar clearly stated the case was to be continued to a future date. A special prosecutor assigned to the case, William Taylor, could no longer handle the case because he accepted a position with an insurance company, and Mincavage said no one was in the courtroom to handle the case because it was supposed to be continued.

George Ward, a deputy city attorney in the courtroom on another case, sought to have the case dismissed without prejudice to counter a move by Terry, Mincavage said.

The city argues that a state law allows prosecutors to seek a dismissal with the right to retry the case, citing a 2000 state Supreme Court ruling that addresses the subject.

Norvell contends the city is incorrect in its interpretation of the ruling and that discretion remains with the judge in the case. She told Mosley that Terry didn't know there was even a special prosecutor assigned to the case until the day before the trial. He was in court with witnesses prepared to go to trial.

Norvell wasn't told of any listing that the case was continued as cited by Mincavage and said that determination should be made by a judge and not a court clerk.

Henderson Police arrested Henderson Oct. 9 on suspicion of being under the influence of a controlled substance following a minor collision at Stephanie Street and Warm Springs Road. Henderson told police he had taken an over-the-counter allergy medication. He also said he had taken a sleep aid the day before.