News from February 27, 2003 issue

Jail now has vending machines
Officials say three new vending machines at the Crittenden County Jail will cut down on contraband and help pay the facility's cable bill.
The coin- and dollar-operated machines installed this month offer inmates a variety of necessities, as well as small luxuries.

Installation of the vending machines comes in the wake of criminal charges against Jailer Jerry Gilland, who is accused of illegally maintaining a canteen at the jail and allegedly profiting from it. Those charges are now pending in Crittenden District Court.

The vending machines containing soft drinks, candy bars, cigarettes and a variety of other hygiene items like soap and shampoo arrived at the jail in early February.

Gilland said the machines help reduce the potential for contraband entering the jail and 15 percent of the profit goes into a special fund at the jail for inmate amenities.

"The company takes care of all of it and I or the deputies don't have to keep up with all of the paper work," Gilland said.
With two weeks remaining before the jail receives its share of the first month's sales, Gilland said it's hard to determine how much money the machines will generate. That, he said, depends on inmate population. However, for every 10 packs of name-brand cigarettes sold at the jail, the facility will earn $6.

The money earned will be spent on inmate recreation, possibly to help pay the cable television bill, which is $44.45 per month.
Soft drinks, cigarettes, note pads, pencils and stamped envelopes are some of the so-called luxuries the vending machines hold. Generic cigarettes are $2.50 per pack and name brands are $4 to $4.25 a pack. A 20-ounce soft drink is $1.25.

"(Prices) are a little higher than in any store in the county, but that's the way a canteen works," the jailer said.

Similar services are offered at Christian, Calloway and other area jails, Gilland explained. He said prices are comparable to those facilities.

"It really cuts down on contraband," said Deputy Jailer Paul Allen. "I don't care how close you check things, you're going to miss something."

Now that the vending service is offered, inmates are prohibited from bringing personal items, including hygiene products, into the jail.
Personal hygiene products will be provided to inmates who cannot afford them.

"If they can buy cigarettes, candy bars or drinks, they can buy hygiene items," Gilland said. "But if a guy can't buy anything, we'll make sure he's supplied."

There is no expense to the county for offering the vending service.

Park Board making changes

The Marion-Crittenden County Park Board has spent several thousand dollars in recent months to spruce up, refurbish and enhance the county park.

A new pavilion near the ball fields was constructed last fall, the park board replaced a dilapidated foot bridge near the playground, added sidewalks near the restroom and the track and created a shaded, picnic area next to the old railroad just behind the soccer field.

One of the biggest ongoing projects is a $5,000 plan to improve drainage at the softball field.

Now park board members are seeking public input to help them decide whether to rebuild the tennis courts.

The rundown, old courts were removed last month because they were no longer playable and had become an eyesore.

Built in 1980, the tennis courts once hosted a great deal of summertime activity. With the coordination of Crittenden County native and former tennis coach Neil Decker, the park was site of up to four tournaments a year between 1980 and the early 1990s.

Fewer people used the courts in the mid 1990s as their condition worsened. And because of large

cracks in the surface, the courts have been unusable for years.

Park board chairman Wayne West said repairing the courts was not feasible.

"We knew it would be a waste of money to repair them," he said, noting they needed a complete overhaul.

The board plans to gauge the community's interest in tennis while they consider rebuilding the courts.

"If we have enough interest we would consider putting one or two courts back, but the main thing now is to see if there is enough public interest," West said.

"People think we've already decided to not put them back, but that's not the case at all. We'd like to see the interest in putting them back, that's why we left the lights."

West said he's heard a few comments in support of the project, most of them coming since the courts have been removed.

He encourages comments about the tennis courts or any other projects the community would like the board to consider.

PUBLIC COMMENT
Public comments about the tennis courts or other projects should be directed to:
City-County Park
P.O. Box 124
Marion, KY 42064
Wayne West (270) 965-2956
wacawest@aol.com

Chicken case ends in mistrial
By Chris Evans, Press Editor

Crittenden County Attorney Alan Stout called defense attorney John Tarter's courtroom tactic "unprofessional" and "a cheap shot" following a mistrial Tuesday in the so-called chicken case.

When Judge Rene Williams declared a mistrial, it left many questions for those who filed complaints and had hoped the trial might decide whether the chicken houses create a nuisance.

"What's going to happen now?" asked Janet Pierce after the trial was stopped. "What does this mean?" She was one of the residents who filed criminal charges.

The trial pitted 10 Marion residents against corporate poultry producer Tyson Foods and its local contract farmer B&G Poultry. Tyson and B&G were accused of allowing their chicken-growing operation just outside the city limits to emit odors that created a problem for nearby city residents, violating a Marion animal nuisance ordinance. The case was scheduled to last three days, but ended abruptly just before 2 p.m., Tuesday. The prosecution, led by Stout, had finished calling 20 witnesses and the defense had put two witnesses on the stand. Tyson was represented by Tarter, a Henderson attorney and Kirk Denton. Princeton attorney Marc Wells represented B&G Poultry.

Shortly after the lunch recess, Tarter stood and made an oral motion, asking Judge Williams to let the jury be taken to the chicken farm in question, which is about a mile from the courthouse.Stout immediately objected and asked to approach the judge's bench. The prosecutor was visibly irritated, at times raising his hand and pointing, while attorneys representing both sides were in front of Judge Williams and outside of earshot of the jury.

After several minutes of discussion with attorneys, Judge Williams reconvened court and ordered a mistrial based on what she perceived was a request from Stout. Afterwards, however, the prosecutor and judge disagreed on who had actually moved for a mistrial.

"There was some confusion," Stout said later. "I said that I was tempted to move for a mistrial and the court perceived it as motion."Williams, who did not want to discuss the case because it could be retried, acknowledged that she thought a mistrial was requested by the Commonwealth.

Nonetheless, both judge and prosecutor agreed that the issue had no legal effect on the ultimate result.Tarter left the courtroom quickly and refused to comment on the case, instead referring any questions to Tyson Foods' corporate spokesman.

Wells, who represents B&G, took a few minutes to discuss the request for the jury to be taken to the farm and why the defense team initiated the motion.

"The only reason we asked for it was because so far in the trial everything had been shown on charts and it's hard to get a real feel for something on a chart.

"We wanted the jury to see it live, to get a bird's eye view of exactly what we were talking about. We wanted them to see how far these people actually lived (from the chicken houses)."

Stout said he objected so passionately to Tarter's motion because the physical condition of the farm Tuesday was, in his opinion, probably very different than it was more than two years ago when complaints were filed in August and September of 2000.

"To make that motion in the presence of the jury has a prejudicial effect," Stout said, pointing out that he was compelled to object based on strict and narrow guidelines established by the court before and during the trial that defined three days in 2000 as the subject of the case.

Countless times during the trial, Judge Williams admonished attorneys on both sides for lines of questioning that led witness' testimony away from the particular days in question ­ those days when formal complaints were filed on Aug. 4, Aug. 31 and Sept. 2 in 2000.

Stout explained that his objection to going to the farm could, and probably would, have been seen as a sign of weakness in the prosecution's case.

The proper way to make such a motion is in private with the judge, away from the jury, Stout said.

"I seriously doubt that conditions at the farm today bear little resemblance if any to what they did in August and September of 2000," Stout said.

"What (Tarter) did was highly prejudicial," Stout said, still fuming after he left the courtroom.

"I have never been as professionally offended in a courtroom during 22 years of practicing law as I was today."

Requesting the jury be taken to the farm was a "cheap shot by Tyson's lawyers," he added. It was a measured tactic, observers said, that would force the prosecution into potentially disastrous moves that would prejudice the jury.

In other words, Tarter's motion prompted Stout to object, which would in all likelihood cause the jury to form an opinion without all of the facts thereby tainting the trial.

As a result, it appears that both judge and prosector believed that a mistrial was the only recourse.Stout did not immediately know if he would pursue another trial."I will meet with the complaining wit-nesses and the other interested parties and then make a decision on whether to retry the case," he said.

Five of the seven jurors, which included one alternate, spoke to The Press following the mistrial. At least three indicated that they were leaning toward a guilty verdict. Two others said they were still very much undecided.

"I had a lot of questions still unanswered," said one juror who requested anonymity. "Like why didn't the police actually go up to the farm and investigate what was going on, why was it stinking?"

Another juror agreed that many questions remained after more than a day of testimony.

"I would have liked to have known if there were other things that could have been done to prevent them from smelling," said one juror.

On the first day of trial, a parade of 19 witnesses were called by the prosecution. Most witnesses were people who filed a formal complaint in August and September of 2000. Others testifying were individuals who phoned informal complaints to the local police department or were police officers who investigated those complaints.

Each witness testified to the degree and repulsiveness of the odor emitting from the chicken growing facility, which at any given time may have 400,000 birds in 16 buildings.

Some called it sickening or nauseating. Others explained that they had to cover their noses and mouths while going from their cars to their homes. A couple claimed that the smell made them physically ill. They described the odor as that of rotting, dead animals and/or manure.

"It smelled like something dead. It would literally take your breath," said Doyle Fritts, who in 1967 built his house in the Greenwood Heights subdivision. "I lived there long before the chickens came and we never smelled anything like this before."

Denton, the defense attorney who gave the opening statement on behalf of Tyson, told jurors that B&G follows Tyson-imposed Best Management Practices in the process of growing chickens. Birds are brought to the facility on the day they are hatched, testified farm owner Bud Wardlaw. The chickens stay there about seven weeks before they're large enough to ship to Robards in Henderson County where they are processed for the table.

Wardlaw testified that he received no formal training in regard to operating the chicken growing facility prior to opening it. However, he said Tyson has a professional technician who visits the operation regularly and provides advice and other support.

Under questioning from Stout, Wardlaw admitted that when litter (rice hulls spread on the floor of the houses to absorb excrement) gets wet, it can cause a strong odor. He said the litter can get wet when a water pipe leaks or when valves that provide drinking water to the chickens malfunction.

Stout also asked several questions in regard to the disposal process of chickens that die at the facility.

Wardlaw testified that dead birds are kept in freezers until Tyson sends its trucks to remove them.

"You have had problems with the freezers haven't you?" asked Stout.
"Yes we have," Wardlaw answered.

Wardlaw said that while the freezers do break down, Tyson is quick to respond, picking up dead birds and repairing the refrigerating units.

"We have (dead chickens) hauled off within a day," Wardlaw testified, if there are problems with the freezers.
Stout suggested that the freezers were on the blink on days when several complaints were filed.

"It's safe to say they weren't working right isn't it?" Stout asked Wardlaw.

Wardlaw answered, "That's correct."

Stout also asked about how the operation keeps fresh air flowing to the chickens. The owner testified that there are 14 fans in each of the 16 chicken houses. Fans circulate air in and out of the buildings, Wardlaw explained.

Under cross examination by his own attorney, Wardlaw testified that each of the 16 chicken houses is cleaned out when a growing cycle is complete.

"Every time a flock is removed, we take the top off of the litter and remove it from the farm," Wardlaw said. "We've always done it after every flock."

Stout asked for maintenance and flock records pertaining the particular days in question, Aug. 4, Aug. 31 and Sept. 2 in 2000. Wardlaw said he would have to find them and bring them back to court later in the trial. Those records were not originally subpoenaed and Tarter brought them to court the next day, Tuesday, just before the judge declared the mistrial. Tarter acted as though he was irritated by having to produce records, which were not originally requested prior to trial.

Nine of the 10 citizens who signed formal complaints against the chicken operation testified on the first day of trial. The 10th, Bill Fox, testified the first thing Tuesday morning. Each went through virtually the same routine. Stout asked them to describe the odors that prompted their complaints, from where they thought the smells were coming and what type of routine at-home activities the odor prevented them from doing.

Defense attorneys cross examined each witness with virtually the same regimen of questions, asking complaining witnesses if they had ever called Wardlaw or Tyson to inform them of the smells ­ all but one said they had not ­ and whether they had ever actually been to the chicken facility or knew anything about its general operation. All of them except Allen Lynn said they knew nothing about how the facility is operated.

Lynn was much more vocal than any of the other witnesses. Under cross examination by Wells, the attorney for B&G Poultry, Lynn was asked if he was against the the chicken facility being put there in the first place.
"Yes I was and I still am," he said.

As with all the other complaining witnesses, defense attorneys asked Lynn if he knew enough about the chicken-growing business to recommend anything that Tyson or B&G could do differently to prevent these alleged smells.

"You've said that if you do everything right then you don't have this problem. So apparently you're not doing it right because they stink," said Lynn, the only complaining witness to testify he complained directly to facility owners about the smell.

Complainants were called to the stand in chronological order, Stout said, based on when they reported their complaints to local police. Testifying were Pierce, Jennifer Moore, Herbert Boone, Dorothy Boone, Bill James, Larry Hurst, Lynn, Otis Millikan, Doyle Fritts and Bill Fox.

Defense attorneys pointed out that some of the complaining witnesses had also been part of a 1997 civil lawsuit filed against the chicken growers before the facility was built. At the time, those residents asked Crittenden Circuit Court for an injunction to prevent the facility from being constructed. Judge Bill Cunningham ruled that there were no grounds to stop the facility from being built because it had not created a nuisance at that point.

The defense noted too that Cunningham, in that same ruling, laid out a series of restrictions that the poultry producer would have to adhere to, which were beyond normal operating procedures. Defense attorneys said Tyson and B&G Poultry had continually operated by those strict standards.

During testimony Tuesday, the second day of the trial, some of Cunningham's ruling appeared near the surface again when the defense called to the stand B&G Poultry's farm manager Tina Rushing.

Rushing, who had worked at the facility more than three years, testified that the chicken houses had been completely cleaned out, replacing the litter twice since she started working there.

Stout asked Rushing the question twice as if to put emphasis on it.

"Let me make sure I understand you correctly," Stout said. "The houses have had all of the manure and litter removed twice in the last three and a half years?"

Rushing replied, "Yes."

Whether or not it would have been admissible remains to be known now that the trial was ended prematurely, but it appears certain that the prosecution was about to seize upon Rushing's testimony because it may have shown disregard for a provision in Cunningham's 1997 ruling which established that the houses should be cleaned once a year to help prevent odor.

Rushing and Tyson service technician Jared Troutman each testified that there were no maintenance or operational malfunctions at the chicken facility, that they could remember, on those days in 2000 when complaints were filed. In fact, the defense entered into evidence a service log completed by Troutman on Aug. 31, one of the days in question. In his notes written that day, Troutman reported checking eight of the 16 chicken houses for problems and found most everything in order. He even commented that the facility manager was doing some things beyond normal procedure.

During the first day of testimony, several policemen were called to the stand by the prosecution, including Marion Police Chief Kenneth Winn, officers Ray O'Neal and Steve Spillman, sheriff's deputy Ray Agent and state trooper Brent White. Mayor Mick Alexander also testified that he had smelled the chickens at his home on Main Street on the south side of the courthouse. The poultry facility is on the north end of town, over a mile from Alexander's home.

Other witnesses called to the stand by Stout were Truman Croft, Angela Starnes and Shawn Stinnett. All of them live in Greenwood Heights subdivision next to the chicken houses. Those three individuals did not sign formal complaints, but acknowledged calling authorities on the days in question to complain about smells emitted from the chicken facility. Tom Guess, who works for the Crittenden County Property Valuation Administrator's office, testified and showed an aerial map of the vicinity where the chickens are housed.

On cross examination, the defense asked Guess if Crittenden County has any zoning or other laws that restrict the use of private lands.
"No, not that I know of," Guess said.

Defense attorneys took every opportunity to point out that the case involved only three days in the summer of 2000. Testimony that varied from those particular days was quickly quashed by objections from Tyson and B&G's attorneys.

Because the defense was so adamant about framing the case around those particular days, it drew the ire of Stout on Tuesday when Tyson's attorney wanted to take the jury on a tour of the farm. Subsequent dialogue at the judge's bench led to the mistrial.

The abrupt halt to the trial is just the latest twist in a complex case that has labored through pre-trial proceedings and appeals for three and a half years.