Cover Story: Case open? Case closed?

By Jeff Atkinson - bio l email

CHARLOTTE, NC (WBTV) - Within two hours of hearing "case dismissed" Monday the Lincoln County Sheriff filed for re election.  Sheriff Tim Daugherty faced two felony obstruction of justice charges for letting a suspected drunk driver go.  But in a stunner at the courthouse Monday morning, the District Attorney dismissed the charges.

The case is not over, but the Sheriff did express some relief.  He said, "I do have a job to do, and I think it's time I got out of here to do the job. Thanks."

At issue in the case whether a phone call was ever made to the Sheriff the night the suspected drunk driver was let go and a written statement with the Sheriff's signature, which the DA says could be a fake.

The Lincoln county D.A. says the case is far from closed but even if he wants to re-file getting the case back in front of a jury may be harder than it seems.

Court watchers say they've never seen it before in a high-profile case.  Asking for a continuance, which is what happened Monday, is not unusual.  Lawyers from both sides ask for more time all the time.

But never on the day a high-profile trial is to begin does the D.A. ask for a continuance and today the judge said "no."

No continuance the judge said and rightly so says Monroe Whitesides, Charlotte defense attorney, former prosecutor and often legal analyst for WBTV.

"If I was a judge I would have found the same thing," he said.

Many people will wonder why the judge didn't give District Attorney Gwynn Radeker more time, time to continue his investigation.  Why force him to drop the charges?

"The judge said I'm not going to inconvenience the public, the jurors or the defendant who is an elected official any longer. We're going to have a trial today or you're going to throw out the charges," said Whitesides.

North Carolina law says a prosecutor may dismiss at any time and charges can be re-filled providing it happens before a jury is impaneled or sworn in.

If a D.A. dismisses anytime after he or she cannot file charges again.  The U.S. Constitution protects a defendant from double jeopardy, being tried for the same crime twice.

Which is why presumably Radeker dismissed charges against Lincoln sheriff Tim Daugherty Monday before any jurors were selected.

No statute of limitations exists on re-filing charges but many legal experts say a case for prosecution often gets weaker not stronger over time.

"I think this is for all practical reasons the end of the sheriff's problems," said Whitesides.

He says should the D.A. decide to re-file the same charges against the sheriff (which the law allows) prosecution could be difficult.

Another grand jury would need to indict and even though the burden of proof is not as great as a trial.. questions will be asked why they weren't ready Monday.

"The grant jurors are part of the same county. You see while it might not be a separate grand jury it will certainly be composed of people who have heard about the case and probably heard about the dismissal."

With the case the way it is the charges have been dropped but it's left unresolved feelings.

Chairman of the Lincoln county commission Alex Patton, who led a crusade to have the Sheriff removed said it's said sad because the Sheriff hasn't been proven guilty nor is he walking away innocent.

It's up in the air.  Voters will get a chance to have their say come election time.

Copyright 2010 WBTV. All rights reserved.