By Joel Warner
By Michael Roberts
By Alan Prendergast
By Michael Roberts
By Michael Roberts
By Amber Taufen
By Patricia Calhoun
By William Breathes
Vannoy defends his handling of the case--and of proceeding with the reconsideration hearing despite the absence of interested parties. Neither side, he notes, asked for a continuance.
But the absence of some of the concerned parties happened for a good reason: Hefty had failed to notify the police and the DEA that a hearing had been set. "It was my mistake," Hefty admits now. "But the truth is, I don't think it would have made any difference." The judge, he says, had already made up his mind to release Komesu.
"Now, I recognize that this is a professional before me who has serious responsibility to the community," Vannoy told the gathering. "And I recognize that he violated that responsibility in a very egregious fashion. I recognize that he had huge quantities of drugs that he had stolen from the pharmacy at the hospital. The restitution is over $13,000. And I'm not condoning any of it."
But, Vannoy continued, Komesu's sentence seemed inconsistent with those in other drug cases. Since the initial sentencing, Vannoy said, he'd looked into 7 drug cases in addition to the 25 he'd studied previously. In all, twenty of those defendants received either probation or a deferred sentence. One seven-year-old case involved another Fort Morgan pharmacist who'd taken drugs from his pharmacy. And that man, Vannoy said, was placed on supervision for one year, at the end of which the case was dismissed.
"I felt when I sentenced Mr. Komesu that he should have some prison experience," Vannoy said, but the time he'd served was enough to satisfy the judge. Vannoy suspended the balance of Komesu's sentence and ordered him to serve six years' probation.
Vannoy's ruling, Komesu says, represented "the happiest moment in my life." Cohen was pleased as well: "I felt a real injustice had happened to him." Other drug-addicted pharmacists, Cohen said, have been treated much more leniently than had Komesu.
Hefty professes to be none too happy.
If Vannoy had said in the beginning that he wouldn't accept the plea bargain, Hefty complains, "we would have gone to trial. If the judge had a preconceived notion of what the sentence should be, he should have been up front with us. We could have gone ahead with state and federal prosecution or asked for another judge.
"This guy got out of federal prosecution because the judge accepted the deal. In my opinion, we got cheated. I'll never make a deal like this again."
In addition, Hefty argues, it is futile to strive for consistency in sentencing drug offenders. "Drug cases are all different, factually," the DA says. "A lot of times a guy might get probation, but the judge doesn't understand the defendant got a deal because sometimes you have to go easy on one person so they'll roll over on the guy somewhere on down the chain."
Numbers mean nothing, Hefty adds, "if you ignore the facts behind them."
And indeed, it does appear that Vannoy overlooked a couple of important facts in those drug cases he'd reviewed. Of the 28 defendants who received probation, ten subsequently violated probation (primarily by using drugs or refusing to submit to urinalysis). At least one of them has fled the area. And though the judge noted that the amount of drugs a defendant possessed has not always been a sentencing factor, many of those granted probation had been caught with a small amount of speed or a bindle of cocaine.
Privately, police and DEA officials admit to being angry and frustrated about the Komesu case, although their comments for the record are more sanguine. "The wisdom of one branch of the justice system is not always apparent to the other," says DEA spokesman Carl Hinds.
"We'll never know how much danger [Komesu] put patients in while he was at the hospital," says Fort Morgan police chief Harold Davisson. "We were opposed to anything less than five years in prison. Had we known a resentence hearing had been set, we would have had people there in the courtroom to oppose it. That's pretty much our stance."
"I don't agree with the judge on this case," echoes Kuretich. "I do respect that he took into account the twenty or so drug cases he felt were related and that he based his decision on that. But maybe what we've got is a poor prosecutorial track record." Perhaps, the sergeant suggests, the district attorney's office has been too willing to make deals.
Hefty has until August 18 to appeal Vannoy's decision. He says he is mulling that over now. The Court of Appeals, he notes, "is tough. I don't think there's much chance of winning." Upon his release from jail, Komesu beat a hasty retreat out of Colorado and back to Los Angeles. The pharmacist, says Hefty, "is a con man" who probably "laughed all the way out of Colorado."
Komesu has held a California pharmacist's license since 1982, and the Colorado case has not yet affected his status there. He denies he is presently working in any occupation, let alone as a druggist, but the DEA and the California Pharmacy Board believe he might be employed as a pharmacist in the L.A. area. A spokeswoman for the California board says it is investigating the DEA's concerns and will take action if and when they learn more about Komesu's conviction and the drug-abuse treatment program in which he has reportedly enrolled.