Judge willing to rehear DUI case

Friday, Sept. 2, 2005 | 8:55 a.m.

Henderson Municipal Court Judge Ken Proctor said Thursday he's willing to reconsider his March 24 ruling dismissing a DUI charge against a former state Parole and Probation Department administrator and set Oct. 4 to hear testimony.

During a hearing Thursday morning in Henderson, Proctor said he understands why District Judge Donald Mosley sent the case back to him for further review.

Proctor acknowledged there were more details that he wasn't privy to when he dismissed the misdemeanor charge against Edward G. Henderson. He dismissed the case because a prosecutor wasn't in the courtroom and ready to proceed with the trial.

Proctor dismissed the case with prejudice, meaning the city couldn't refile the DUI charge.

The dismissal of the case against Henderson, who at the time of his arrest was the district administrator of the state Division of Parole and Probation, drew cries that favoritism was involved. Those accusations were denied by city officials.

Proctor was also placed under the spotlight because Henderson's attorney, Bill Terry, represented the judge in 2002 when he sued the city, demanding a bigger wage increase.

A special prosecutor, William Taylor, not the city attorney's office, had been assigned to the case. Taylor, however, dropped out in February because he accepted a position with an insurance company, but didn't notify the court, city officials said.

Assistant City Attorney Dave Mincavage told Proctor that the March 24 court calendar clearly stated the case was to be continued to a future date, but Proctor pointed out that the calender is prepared by the city attorney's office,and someone would still have to come to court to get a continuance.

After hearing a request from defense attorney Bill Terry, Proctor said Taylor should be brought to court as a witness to explain what happened.

"I would like to hear some answers," Proctor said.

The city's main argument, however, is that no matter the facts in the case, state law allows prosecutors to seek a dismissal with the right to retry the case. The city cites a 2000 state Supreme Court ruling that addresses the subject.

The defense argues the city is incorrect in its interpretation of the law and that the discretion remains with the judge.

The setting of the hearing on Oct. 4 comes five days before the statute of limitation expires on the case. Edward Henderson was arrested on Oct. 9, 2004, on suspicion of being under the influence of a controlled substance following a minor collision at Stephanie Street and Warm Springs Road.

If Proctor ruled against the city's request to reinstate the case, the city attorney's office would be against a tight deadline to return to Mosley and ask him to reinstate the charges.

Terry declined to comment on the case while it's still pending. Mincavage said he's happy that Proctor will review the evidence and reconsider his decision but declined further comment.