-Caveat Lector- http://www.kentuckyconnect.com/heraldleader/news/010900/statedocs/09attorney.htm Published Sunday, January 9, 2000, in the Herald-Leader Wayne residents eye lawyer's jail release Despite DUI charge, he stayed only minutes By Ty Tagami South-Central Kentucky Bureau MONTICELLO Wayne County justice officials disregarded their usual procedures to let a local lawyer charged with drunken driving out of jail 35 minutes after he was brought there early on a Saturday morning. Most people in such situations in rural Kentucky can look forward to a night, or even a weekend, in jail. But the speedy release of lawyer Gregory George Bertram has led some to question whether he received special treatment, and has raised ethical concerns about a local prosecutor's involvement in his release. Bertram, 40, former attorney for the city of Monticello, was taken to jail at 1:55 a.m. on Nov. 27. He called his friend Tom Simmons, assistant commonwealth's attorney for Wayne County, who called a judge and secured the lawyer's release without bail. Bertram was out by 2:30 a.m. Word of the incident spread quickly. Some say it shows there are two kinds of justice for two kinds of people: those with connections and those without. ``If it was me, I'd have to spend the night'' in jail, said Carl Hill, who lives on Ky. 200 near the site of Bertram's arrest. Hill was getting ready for bed when he heard the sirens and saw the flashing blue lights of a deputy. He witnessed most of the arrest. Hill said his neighbors chewed on the incident in the days after. ``They said, `Well Lord, they ain't going to do nothing to him.' '' District Judge Robert L. Wilson, who let Bertram out of jail that morning, said there was nothing unusual about the circumstances, even though court officials say the release strayed from standard procedure. ``George Bertram did not get any special privileges,'' Wilson said. Wilson said Simmons' authority as a prosecutor had no bearing on his decision to release Bertram, whom Wilson said had an unsupervised child at home that morning. Simmons ``didn't call me in the capacity of a commonwealth's attorney, he called me in the capacity of a responsible person that was going to get George home to his child who was there without anybody,'' Wilson said. ``I think I was duty-bound to let the man go.'' Wilson, who took office last year, has faced his own alcohol-related charges; he's been arrested five times since 1986 on charges of driving drunk, the last in 1995. The arrests led to three convictions, although the third the 1995 case was overturned on appeal by a circuit judge whom Wilson has described as a friend. Simmons also said that his role as a prosecutor in the office of Commonwealth's Attorney Robert Bertram, a distant cousin of the arrested man, had nothing to do with the unusually speedy release. There is no conflict of interest, he said, since he prosecutes felonies in Circuit Court and Bertram's case involves only misdemeanors and is in District Court. He admitted, however, that he began to feel some doubt about his role in Gregory George Bertram's release a few days afterward. ``I probably should have had him call somebody else, but I just honestly didn't think about it,'' Simmons said, adding that he was awakened out of a deep sleep by Bertram's call and was in a fog. ``I was just trying to help a friend out and get him home.'' Donna Osborn, who runs a Kentucky court-monitoring project for Mothers Against Drunk Driving, thinks Simmons crossed an ethical line. ``Prosecutors are supposed to be working for the state and the community and not for the defendants. I don't care whether he's prosecuting it or not, it's a conflict,'' she said. Normal procedures Ordinarily, when people are charged with drunken driving after midnight in Wayne County, they have to sleep it off in the jail until morning when the pretrial release officer comes on duty. That's also the norm across rural Kentucky, said Osborn. The pretrial release officer, an employee of the Kentucky Administrative Office of the Courts, interviews defendants and awards points according to a form that assesses flight risk, the likelihood a detainee will flee. The officer then confers with a judge to set bail. ``That's the way it's supposed to happen,'' said Laura Stammel, the assistant director of the AOC. ``The point of the form, the point of the whole pretrial services thing, is for the release decision to be based on some uniform information.'' She noted that there is no rule to stop a judge from going around the process. She said that would be unusual, however. Bertram was arrested at 11:50 p.m. on a Friday, a few miles north of the Tennessee line. He was being pursued by a Tennessee sheriff when he passed the Kentucky officer who later arrested him, court records say. According to the arrest citation, former Wayne County Sheriff's Deputy Joseph Allen Weston he left the department two weeks ago spotted Bertram's black Lexus at 11:22 p.m. It took Weston and another Wayne County deputy 28 minutes to complete the arrest, according to the citation. Weston wrote that Bertram smelled of alcohol and cursed and screamed at and threatened him and Deputy Terry Davis. The citation said Bertram had taken Tylox, a prescription painkiller that can cause drowsiness and dulled reaction time when mixed with alcohol. Weston charged Bertram with two counts of terroristic threatening, one of disorderly conduct and one of driving under the influence, all misdemeanors. Bertram pleaded not guilty, according to a judge's order entered on Dec. 13. Otherwise, the case has been in limbo because the county attorney who was prosecuting the case stepped aside, citing his familiarity with Bertram. Wilson ordered all evidence sealed in the Dec. 13 order, including the results of a blood-alcohol test. Bertram said in an interview that a preliminary breath test administered by the deputies indicated he had a blood-alcohol level of 0.103 percent. A driver in Kentucky is presumed drunk at 0.10. However, a preliminary breath test is merely for determining probable cause for an arrest and is not admissible in court, and Bertram said in a recent interview that he wasn't drunk. ``I quit drinking before I left this drinking establishment well before I left for the express purpose I knew I had to drive home,'' he said. Bertram said the Tylox was a prescription for a back injury. Trial pending Normally, someone charged with the four crimes attributed to Bertram would have bail set at around $1,000, said Wayne County Jailer Jerry Guinn. Someone, usually a friend or relative, would have to come up with 10 percent of that amount in cash and sign on the surety line of the bail bond release form. The signature obligates the signatory to pay the entire amount should the defendant flee. Attorneys in Kentucky are barred by rules of criminal procedure from being ``taken as surety on any bail bond.'' In Bertram's case, Wilson set the bond at zero. Simmons went to the jail and signed on the surety line. But Simmons said it was not a violation since no money was involved. Even so, a leading Kentucky prosecutor said attorneys, and especially fellow prosecutors, probably shouldn't do such things. Phillip Patton, the commonwealth's attorney in Barren County and the president of the Commonwealth's Attorneys Association, wasn't commenting directly on Simmons' case. He wasn't told any names, but he was told how a prosecutor had signed the bail bond form. ``It has always been my understanding that attorneys cannot sign bonds. I have always known that,'' Patton said. Although money wasn't involved, ``it probably still wasn't the best thing to do given this rule and given his role of being a prosecutor,'' he said. Simmons said what he'd done was no big deal since Bertram must still stand trial. ``I understand that people think that, you know, he should have spent time in jail and everything. But it's bail,'' Simmons said. ``It's not like he's gotten out of anything.'' Reach Ty Tagami at (606) 678-4655 or [EMAIL PROTECTED] -- ----------------------- NOTE: In accordance with Title 17 U.S.C. section 107, this material is distributed without profit or payment to those who have expressed a prior interest in receiving this information for non-profit research and educational purposes only. For more information go to: http://www.law.cornell.edu/uscode/17/107.shtml ----------------------- DECLARATION & DISCLAIMER ========== CTRL is a discussion and informational exchange list. 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