(06/26/2009)
Downey denies pharmacist got special treatment

By David Hedges, Publisher

thetimesrecord.net

Roane prosecutor Josh Downey says a pharmacist charged with the theft of narcotics did not receive any special treatment.

Jay Starcher was charged, arraigned, entered a plea and was sentenced at the same time, something even Downey admits is unusual.

The 55-year-old Spencer man was charged with petit larceny and embezzlement after a security officer at the Spencer Walmart said a co-worker saw him putting pills in his pocket on May 10. The officer provided State Police with video from a store security camera.

After a count revealed the store was short 103 hydrocodone pills, Cpl. F.L. Hammack said Starcher admitted taking pills from the store.

Starcher and his attorney showed up after magistrate court was closed June 10 for a first appearance on the misdemeanor charges. That will also be his last appearance because the case was finalized at the same time.

Downey agreed to drop the embezzlement charge and Starcher pled guilty to petit larceny. He was fined $100 and ordered to pay court costs and $100 restitution.

Downey agreed it was rare for the wheels of justice to turn so fast.

"It is uncommon for that to happen," he said this week. "That's just the way the cards fell."

Downey became prosecutor in January, but a more experienced attorney agreed it was unusual.

"I've never seen it before in my 12 years," public defender Teresa Monk said. "It's never happened with any of my clients."

Magistrate Jason Bennett, who handled the case, also found it odd.

"It was done very quickly," Bennett said. "I didn't particularly care for the way it happened."

Bennett said when Hammack filed the complaint around 2 p.m. that day he asked Bennett if he would be in the office around 4:30. Magistrate court closes at 4 p.m.

"Since I had court that day I knew I would still be in the office doing paperwork, so I said sure," Bennett said.

He said around 4:30 Starcher, Starcher's wife and attorney Mort Titus arrived at the office, followed by Hammack a few minutes later.

Downey was already in the office and met with Hammack, then Starcher and Titus, behind closed doors in the jury room.

When they emerged, Downey told Bennett a plea was worked out and he wanted to dismiss the embezzlement charge.

First Starcher had to be arraigned and have bond set, a move Bennett said Downey did not think was necessary.

Bennett said the bond of $12,500 he set came from a schedule he uses for a list of various offenses.

"I have a bond schedule I go by so each person charged with the same crime gets the same bond," he said. "That way it's fair across the board."

With the guilty plea, Downey asked for a $100 fine and $100 in restitution, but no jail.

Bennett said he could have refused the plea agreement, which is something he has not done since he became a magistrate in January.

"I've never denied a plea agreement," he said. "If the prosecutor wants to dismiss a charge, I assume there's a reason."

After being arraigned and posting bond and entering a guilty plea to petit larceny, Starcher paid the fine, costs and restitution and the case was over in less than an hour.

While it may be unusual, Bennett said any defendant has the right to enter a plea at their first appearance in court on a charge.

"But not everyone is fortunate enough to have the prosecutor in the office," he said. "I don't know if that was by chance or not. That would be a question he would have to answer."

Downey admitted it was not by chance. "I may have had a preliminary discussion with his attorney," he said, later adding he thought he had spoken with Titus "a day or two before."

Monk said she had never known of a case where the prosecutor appeared in magistrate court at the same time someone was arrested.

"I've never heard of it," she said.

Monk said she also was surprised at the outcome of the case.

She said she had a client in a similar situation a paramedic accused of stealing drugs from the county ambulance service.

She said he was arrested on felony charges that were reduced to misdemeanors only after several months of legal argument.

Her client went to trial and was convicted on two counts. Roane Circuit Judge Tom Evans sentenced him in November to six months in jail and fined him $200.

"I would have thought there would be a harsher penalty for a pharmacist - someone who knew what he was doing," Monk said.

"That's even what Judge Evans said at sentencing. He said since he was a paramedic he should have known better," Monk said.

"This just seemed like a slap on the wrist," she said.

Downey said he considers several factors when he recommends a sentence, including prior criminal record, whether or not there is a victim and what sanctions a person may face outside the court system.

He said Hammack was in agreement with the plea in this case.

"It was not done this way to give anyone any special treatment," Downey said. "It was just a way to get it off the docket. I was over there and we took care of it."

thetimesrecord.net


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