-Caveat Lector-
Justices uphold Hale conviction in '99 state case
By SETH BLOMELEY
ARKANSAS DEMOCRAT-GAZETTE
December 8, 2000
In a 6-1 decision, the Arkansas Supreme Court on Thursday upheld
the 1999 state conviction of David Hale for making false or
misleading statements to state insurance regulators.
In the appeal, Hale argued that prosecutors improperly
questioned him during his trial about another matter -- his role
in the Whitewater affair.
A Pulaski County Circuit Court jury sentenced Hale, a former
Pulaski County municipal judge, to 21 days in prison.
Despite the short sentence, Hale must report to state prison,
not the county jail, because the charge is a felony, said Pulaski
County Deputy Prosecuting Attorney Hugh Finkelstein.
It's unclear when he will report to prison.
Finkelstein said Prosecuting Attorney Larry Jegley and Hale's
attorney, David Bowden of Little Rock, agreed after the high
court's decision was announced that Hale could remain free until
a space opens in the Department of Correction.
That would save Hale, who has had two heart attacks and uses
a pacemaker, from having to wait several months in the county
jail before being transferred to serve his short sentence.
"That's based on [Hale's] health concerns, and if we put him
there, the county has to pay for it," Finkelstein said.
The approval of the trial judge, David Bogard, is needed for
this arrangement.
Bowden said Hale, who is living in Shreveport, wasn't sure if
he would pursue the case further.
"I think [Hale] may just go ahead and serve his 21 days and
be done with it," Bowden said. "He wants to call it a done deal
and get on with his life."
Hale contended that in using information from his federal
case, Jegley and Finkelstein acted wrongly because federal
prosecutors had granted Hale immunity from future federal
prosecutions in exchange for his cooperation with the Whitewater
investigation.
Justice Annabelle Clinton Imber, who wrote the court's
opinion, said Bowden failed to timely object to prosecutors'
questioning of Hale about his role in the Whitewater scheme. She
notes that the questioning continues for 23 pages of the
transcript before an objection is raised.
Imber noted that Bogard may not have known that using such
testimony violated the high court's ruling in a previous
proceeding in the Hale case.
"When the trial judge does not know that an error has
occurred, it is the aggrieved party's duty to promptly object so
that the trial judge is afforded an opportunity to timely correct
the mistake," she wrote.
In a concurring opinion, Justice Robert L. Brown criticized
the defense, the state and the trial judge.
"This court took pains to be exceedingly clear ... that the
state couldn't use any of Hale's immunized testimony," Brown
wrote. "Yet, that is precisely what the prosecutor did at trial."
Brown wrote that Bogard should have known this but that it
was up to Hale's lawyer to object timely.
Justice Ray Thornton dissented. He said Bowden's late
objection was sufficient to cause a reversal. He said prosecutors
were "flouting" the court's previous order.
"The trial court as well as defense counsel has a duty to
step in and correct the serious error," Thornton wrote. "Because
of this breach, Hale was not given a fair trial."
Hale served 24 months in federal prison after pleading guilty
in 1994 to conspiracy and mail fraud. He later was a key witness
in the federal Whitewater trial of former Gov. Jim Guy Tucker,
businessman Jim McDougal and McDougal's ex-wife, Susan.
In the state case, prosecutors alleged Hale took $150,000
from a Texas businessman, Michael Rutherford, who thought Hale
was going to invest it into a company called Med-A-Corp.
Rutherford later found out that company didn't exist, and Hale
transferred the money back to Rutherford.
Hale contended he was merely buying stock in Rutherford's
company.
Prosecutors allege Hale reported that stock as having enough
value to show as an asset. Regulators previously informed him he
was $38,000 short of the state-required assets for his insurance
company, National Savings Life.
Information for this article was contributed by Linda Satter
of the Arkansas Democrat-Gazette.
=================================================================
Kadosh, Kadosh, Kadosh, YHVH, TZEVAOT
FROM THE DESK OF:
*Michael Spitzer* <[EMAIL PROTECTED]>
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