Saturday, January 23, 1999
Prosecutor finds self witness at DUI trial
Judge refuses motion to halt legal maneuver
BY TERRY FLYNN
The Cincinnati Enquirer
NEWPORT — Assistant Campbell Commonwealth Attorney Jack Porter won't be prosecuting an unusual felony DUI case Monday, because in a bizarre twist he will appear as a witness for the defense.
Newport attorney Tom Beiting subpoenaed Mr. Porter to testify in the case of Elmer Ray Turner, 39, who was charged with driving under the influence by a Newport police sergeant five days after he was charged with alcohol intoxication by another officer.
Mr. Beiting and Mr. Porter appeared before Campbell Circuit Court Judge Leonard Kopowski on Friday for a hearing on a motion by Mr. Porter to quash the subpoena.
But Judge Kopowski said he had no alternative, given the facts presented and the law regarding subpoenas, but to overrule Mr. Porter's motion and permit the trial to proceed Monday with Mr. Porter as a witness.
Because he will be called as a witness, Mr. Porter cannot serve as prosecutor. Another member of the Commonwealth attorney's staff will handle the trial.
“Given what I know at this point, I have to overrule,” the judge said Friday. “I'm in something of a predicament here because I don't know everything that was said by the parties. This (prosecutor called as a defense witness) isn't something that comes up every day.”
Mr. Beiting wants Mr. Porter to testify in an effort to impeach the testimony of Sgt. Coy Cox, who he claims lied on the stand during Mr. Turner's preliminary hearing in District Court.
“Sgt. Cox said he filed the (DUI) charge after talking with Mr. Porter and receiving affirmation,” Mr. Beiting said. “But in a conversation I had with Mr. Porter several months ago, he said he advised Sgt. Cox not to file the charge.”
Mr. Porter told Judge Kopowski Friday that he could only assume Mr. Beiting misunderstood or misinterpreted what he said during their informal conversation, and denied stating that he advised Sgt. Cox not to bring the charge.
The DUI charge stems from a Feb. 20, 1998, incident at the White Castle restaurant on Fifth Street in Newport.
White Castle employees complained to police about an intoxicated man at the drive-through window. A Newport officer who responded cited Mr. Turner for alcohol intoxication and driving with a suspended license. The second charge was later dismissed.
Five days later, after White Castle employees complained about what they thought was lax enforcement, Sgt. Cox charged Mr. Turner with DUI, which is a felony because it is Mr. Turner's fourth such alleged offense.
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