Julie Patterson the officer's widow, cried in the arms of her mother, Kathy Murphy, as the acquittal verdict was read. A few feet away Shively, his fingers intertwined ands arms resting in his lap, displayed no emotion. In the row behind him, some of his family and supporters embraced and cried.
After the verdict, Shively's hands were manacled behind him and six county department of corrections officers and three deputies briskly walked him to a stairwell.
Jurors did convict Shively of aggravated assault, sale of marijuana, possession of marijuana with intent to sell, conspiracy to sell marijuana, failure to pay the Kansas drug tax and possession of drug paraphernalia. On the assault charge, the jury's options included aggravated assault on a law enforcement offlcer or aggravated assault. Jurors went with the lesser charge. The aggravated assault on a law enforcement officer charge was linked to pointing a pistol at police officer Bruce Voigt, Patterson's partner on the Street Crime Action Team, moments after Patterson was fatally shot during a drug raid at Shively's central Topeka apartment.
After the verdict, Julie Patterson's hands trembled as she struggled for words at a news conference. "I sure hope the 12 members of the jury are never sitting in my position in any way or shape," she said. "Tony didn't have a chance," she said, dissolving into tears. "We have a gentleman who is 34 years of age. He is nothing, has never been anything. He's a drug dealer." Before his arrest, Shively was a laborer at Adams Business Forms and a technical college student. With the sentence Shively could receive, he 'will be back walking the street," Patterson said. "All Tony was doing was what the law allowed him to do, what he was paid to do. He was doing it because that is what he truly believed in. It's not worth it" The same night as the drug raid, Patterson said, police officers pounded on her door when notifying her that her husband had been shot. She didn't answer the door with a gun in hand, she said.
Shively testified he had armed himself with a pistol because he thought the pounding on his front door was by gang members, an angry co-workeror a burglar.
'I think they (jurors) read the judge pretty well, too," said a bitter Murphy, who declined to elaborate. District Attorney Joan Hamilton said her office would appeal part of the case. Prosecutors can't appeal the verdicts because that would be double jeopardy, but they can appeal points of law. Hamilton will appeal two points:
- Dowd's refusal to admit results of a polygraph exam taken by officer Michael McKinley which prosecutors contend showed that he yelled, "Police! Search warrant!" during the raid.
- Part of a jury instruction issued by Dowd dealing with the use of force in the defense of a dwelling. The contested part states, "A person is justified in use of force to defend his dwelling even if there is no threat of death or bodily injury to himself or another."
That instruction was "devastating" to the prosecution's case, Hamilton said, adding that prosecutors objected to the instruction before it was read to jurors.
Shively, who will be credited with the six months he has served in jail while awaiting trial, is to be sentenced in about 30 days. An exact date hasn't been set. He could face from less than one year and four months in prison to 11 years and four months, depending on the sentence range Dowd chooses, whether the sentences are consecutive and whether the judge doubles the sentences. Hamilton said she.would ask Dowd to make the sentences consecutive and to depart upward from state sentencing guidelines, which would double the sentences. If Shively were sentenced to 11 years and four months, he first could earn 15 percent good time on his sentence, making him eligible to be released after serving nine years and seven months. If the sentences are concurrent, Shively could serve less than one year and four months, the maximum sentence on two of the drug convictions. Shively's defense attorneys built their case on the premise that he was defending his home when he fired the fatal shot. Shively had no legal requirement to retreat in defense of his home, defense attorneys contended. "The defense of dwelling was clear," Ben Wood, a Shively defense attorney, said after the verdict. "Steve did not know there were officers out there." Defense attorney Jeff Moots and the Shively family declined to comment about the case.
Prosecutors emphasized Patterson was one of six police officers executing a search warrant to look for marijuana in Shively's apartment, 1519 S.W Mulvane. Shively's use of force wasn't reasonable. prosecutors said, and Shivety was a drug dealer defending his marijuana. Officers ultimately seized about 12 ounces of marijuana from the apartment. Shively originally was charged with capital murder, but Dowd reduced the charge to second-degree murder after a preliminary hearing in January. Under Kansas' 1993 death penalty law, the state can execute people who deliberately kill police officers.
Sheriff candidate Creamer is best known for his Sunday afternoon protests at 11th and Massachusetts, where he carries a placard urging motorists to "honk for hemp." He was an unsuccessful candidate for Lawrence school board in 1994 and for the Democratic nomination for the 2nd District congressional seat in 1990. "If elected I would make marijuana a very low priority and violent crime a high priority," said Creamer, who gave his occupation as ditch digger. The sheriff should be a peace officer in a literal sense, he said. "We've tried having a war on drugs for 25 years and it's only made things worse," he said. "The answer here is for different groups to start loving each other." Creamer also said he would decry racism in law enforcement and "tune up the jail" by improving inmate nutrition and making educational opportunities available. He also would have law enforcement officers act as inmates' role models rather than as their antagonists. "I've been in jail so I know there's some bad apples," Creamer said, referring to law enforcement officers. "There are some reasons criminals might complain." To protest marijuana laws, Creamer got himself arrested in 1989 by lighting a marijuana cigarette in the Judicial & Law Enforcement Center. He was sentenced to six months in jail.
Hepford, the treasurer candidate, is employed in the city-county emergency dispatch center. He believes the experience he gained as a treasurer's office employee as well as his educational background qualify him for the position. Hepford has a degree in management from Emporia State University and has taken additional coursework so that he will be qualified to sit for the certified public accountant's exam in November. If elected, Hepford said he would strive to maintain Hempen's 98 percent tax collection rate. "I'll probably want to be a little more aggressive with businesses that are delinquent on their taxes," he said. Hepford also said he would explore opening a satellite office in Baldwin and having an express lane in the treasurer's office for end-of-the-month vehicle registration renewals.
Here's a rundown of candidates who have filed in contested county races: County Commission, 2nd District: Jim Jesse, Democrat; Glen Grosdidier and Tom Taul, Republicans. County Commission, 3rd District: Beverly Worster and Larry Kipp, Democrats; Don Dalquest and Dean Nieder, Republicans. Sheriff: Loren Anderson, Republican; Mark Creamer, Democrat. Treasurer: Connie Daniels and Thom Hepford, Republicans; Pat Wells and Charley Cornwell, Democrats.
"Suppose I was at a KU football game and I had a beer in my hand.... Now, would that disqualify me from running for sheriff? Is there a double standard?" - Mark Creamer
Creamer says he's been sentenced twice on pot charges. Tentatively, the state's top law enforcement officer says that means Creamer's candidacy has gone up in smoke. "I do not want to say that he can't serve without waiting for that KBI certification Friday," said Mary Horsch, spokeswoman for Atty. Gen. Carla Stovall. However, Horsch's boss has checked the law and has an opinion on the matter. "Atty. Gen. Stovall believes the letter and the spirit of the law would include that marijuana conviction," Horsch said.
Creamer, 49, said his banishment from the sheriff's race would raise legal questions that he would try to explore in an appeal of his disqualification. "Suppose I was at a KU football game and I had a beer in my hand. That would be illegal," Creamer said. "Now, would that disqualify me from running for sheriff? Is there a double standard?" Creamer also objected to classifying misdemeanor marijuana offenses as narcotics violations. "That is such an old-fashioned, outmoded point of view," he said. "It's shocking, almost." Creamer pleaded guilty in 1971 to attempting to possess marijuana. In 1989, Creamer staged a protest of marijuana laws by lighting a marijuana cigarette in the Judicial & Law Enforcement Center and getting himself arrested. He spent six months in the Douglas County Jail for the episode. Creamer's arrest record was not an issue during two previous candidacies for offices that did not involve law enforcement duties. In 1990, Creamer unsuccessfully sought the Democratic nomination for Congress in Kansas' 2nd District. Last year, he was eliminated from the Lawrence school board race in the primary.
"The KBI found ... that he shouldn't be certified to run for office," said Mary Horsch, spokeswoman for Kansas Atty. Gen Carla Stovall.
County Clerk Patty Jaimes said Creamer has until July 5 to present evidence that the KBI was in error in making the determination. Creamer said attorney Dennis Highberger would be sending Jaimes a letter seeking reconsideration. "We're just stating that in Kansas law marijuana is not listed as a narcotic," he said. Creamer said he was surprised that a 1989 conviction for possession did not show up on his KBI record. In that instance, Creamer got himself arrested for lighting a marijuana cigarette in the Judicial & Law Enforcement Center in protest of drug laws. Both convictions were misdemeanor violations.
Jaimes said she must have ballots printed by July 17 when advance voting is scheduled to begin. She wasn't certain how long she could hold up printing. "What I've said to my printer is to please run the Republican ballots first," Jaimes said. Creamer's name will not be in a legal publication listing candidates that will appear in Monday's Journal-World, Jaimes said. That publication must run three times. Jaimes said Creamer's name would be added to subsequent printings if his candidacy was reinstated.
Creamer's attorney, Dennis Highberger, said he will proceed with Creamer's petition despite District Judge Paula Martini s denial of a request for a temporary injunction to get Creamer's name on the ballot. "We'll know in a few days how we intend to respond to this," Highberger said. Creamer is fighting the decision that, due to marijuana convictions in 1971 and 1989, he should be disqualified from the sheriff's race. State law prohibits anyone who has been convicted of or pleaded guilty to narcotics violations from seeking the office of sheriff.
During a hearing this week, Highberger said marijuana isn't considered a narcotic under the state's drug laws, and therefore Creamer should not be barred from seeking election. Martin ruled Thursday that, in the statute in question, the term "narcotics" is not used to refer to a drug's pharmacological makeup but to controlled substances and illicit drugs in general. "Narcotics ... is a generic term referring to drugs and only in using the word generically is the statute logical and able to carry out its intended purpose," Martin's decision stated. The position of the Kansas attorney general's office, with which Martin agreed, was that Creamer should not be certified to run for office.
Creamer said the legal fight over the definition of marijuana as a narcotic was a positive side-effect of his desire to run for sheriff, but that he did not run solely for that purpose. "I really did want to win in a lot of ways," he said. "What the community needs right now is a leader to bring the different minority cultures together." Creamer was an unsuccessful candidate for Lawrence school board in 1994 and for the Democratic nomination for the 2nd District congressional seat in 1990. His arrest record was not an issue during the previous candidacies, which did not involve law enforcement duties.