Watchdog

He’s spending 20 years in a KY prison as a repeat meth cook. He didn’t do the crime.

Brian Keith Damrell, 48, lives in a cell at the Eastern Kentucky Correctional Complex in Morgan County. He’s eight years into a 20-year sentence.

Under state rules, the earliest he could walk out the gate is Feb. 29, 2028, when he’ll be 57. By then, his elderly parents might be dead. His three sons already have grown up without him. One son has gotten into trouble with the law and gone to jail.

“You miss everything you love. And then, you know, a lot of the things you love die while you’re in here,” Damrell said in a recent interview inside the prison. “You’re just jerked out of society and you’re done with.”

Damrell’s punishment is so stiff because he was convicted of such a serious offense: second-offense methamphetamine manufacturing. State legislators made that a Class A felony, the highest level. Rape, armed robbery and manslaughter are Class B felonies.

As a Class A felon, Damrell automatically — although inaccurately — is labeled a “violent criminal” by the state, so he must serve at least 85 percent of his time before the Parole Board can review his case for possible early release. Only 2 percent of Kentucky prison inmates are Class A felons, mostly murderers and violent child-sex offenders. Because he is lumped in with this group, Damrell can’t participate in various rehabilitation programs available to most other prisoners.

Repeat-offender meth cooks like Damrell are menaces to their communities who must be locked away for a long, long time, Assistant Commonwealth’s Attorney Jeremy Bartley told the Rockcastle County jury that convicted him in 2011. Bartley asked jurors to impose a sentence of 30 years to 40 years, far more than they handed down.

“You can stop this revolving door,” Bartley urged the jury. “It starts today.”

But here’s the problem: Damrell didn’t do it.

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Brian Damrell is serving 20 years at the Eastern Kentucky Correctional Complex. John Cheves jcheves@herald-leader.com

Despite the trial verdict, he wasn’t really guilty of the Class A felony that’s claiming two decades of his life, to say nothing of the estimated $462,939 his lengthy incarceration is costing Kentucky taxpayers.

And nobody involved with sending him to prison for 20 years — not the lawyers, the police or the judge — believed that he was.

Prosecutors used a little-known provision in Kentucky law to dramatically elevate the lower-level drug charge that Damrell originally faced, replacing the crime a police officer suspected him of committing with something far more serious. With the stroke of a pen, he went from facing two years in prison to the possibility of growing old behind bars.

The popularity of these so-called “enhancements” in criminal cases, particularly with nonviolent drug offenders, is one reason why Kentucky struggles to pay for a growing state inmate population of more than 24,300 that has filled 13 prisons and 76 county jails, some of which are dangerously overcrowded. The Kentucky Department of Corrections this year is expected to spend $628 million housing inmates.

From a civil rights viewpoint, convicting a man of a crime he didn’t commit makes a mockery of justice.

“Nothing about this was fair,” said James Baechtold, Damrell’s attorney, who unsuccessfully appealed his client’s predicament all the way to the Kentucky Supreme Court.

“When we first started raising our objections, I heard from prosecutors around the state who said this was a terrible case. I think everybody who had anything to do with this is embarrassed by it,” Baechtold said.

Making up charges

For the last decade, Damrell resolutely has maintained his innocence of any wrongdoing in this case. He might or might not be telling the truth about that. But at the very least, he could not have been guilty of second-offense meth manufacturing because he had no previous conviction for first-offense meth manufacturing.

Until a Kentucky State Police officer charged him with meth making in this case, using evidence that even prosecutors described in court as “sloppy,” Damrell had never previously been accused of cooking meth. This was his first offense.

This is not a minor legal technicality.

Under Kentucky law, the difference between first-offense and second-offense meth making is the difference between 10 years in prison, most likely cut to two years by parole, and 20 years to life behind bars. Damrell would have been free long ago had he only been convicted of the first-offense charge the state trooper wrote on his 2010 arrest report.

So what happened? Prosecutors elevated the charge in his case using an enhancement.

The Kentucky General Assembly has added many enhancements to the penal code. This is language that allows prosecutors to elevate and multiply the charges in a criminal case, effectively pressuring defendants to accept a plea deal instead of going to trial and risking a long prison stint. With enhancements, misdemeanors can become felonies. Lower-level felonies can turn into life imprisonment.

The persistent felony offender law, for example, can dramatically increase penalties after someone’s first felony conviction. According to a Kentucky Bar Association presentation this year, the majority of PFO-enhanced prison admissions have no history of violent crime. One third were convicted of drug offenses.

“It’s heartbreaking in so many ways, and it’s costly, because there is no evidence to show that locking up drug addicts for 10 years, 15 years, 20 years is doing anyone any good. In many of these cases the punishment no longer fits the crime. And if it doesn’t, then what’s the point? Why hand down these sorts of sentences?” asked Allison Connelly, a former public defender who teaches criminal law at the University of Kentucky College of Law.

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Allison Connelly

“It’s perplexing to me,” Connelly continued. “There is this absolute refusal in both houses of our state legislature to realistically reassess how they’re handling some of these drug cases so that the punishment isn’t out of all proportion to the crime.”

State lawmakers, though, say they see a need for enhancements.

“Well, I think the enhancements are there for a reason. They’re there to punish behavior that continues to happen repeatedly,” said Senate Judiciary Chairman Whitney Westerfield, R-Hopkinsville.

“A DUI enhancement is there because you continue to get DUIs,” Westerfield said. “Enhancements on all the other offenses where they are there are intentional because you did the first offense, you’ve presumably been punished because of that — you’ve been convicted, you had a sentence, you served it — and then you did it again. So evidently the punishment wasn’t sufficient. So I think enhancements are OK.”

Enhancements have played a significant role in the state’s war on drugs. Over the last six years, Kentucky prosecutors enhanced or amended up drug charges at least 819 times, according to statewide courts data.

Among the drug-related enhancements: Someone charged with selling drugs can face an additional felony if they were within 1,000 feet of a school. Someone charged with a drug offense while in possession of a gun can have their charge elevated one level, such as going from a Class A misdemeanor to a Class D felony.

And under KRS 218A.010(48), someone charged with first-offense meth manufacturing who has a prior conviction for any drug offense other than trafficking — even if the offense was as minor as misdemeanor marijuana possession — can watch unhappily as prosecutors file a motion in court to erase the first-offense charge and skip ahead to second-offense meth manufacturing.

That last one is exactly what happened to Brian Damrell.

‘Where’s the logic?’

Citing Damrell’s two drug possession convictions from seven years earlier, both of which resulted in probation, prosecutors elevated his first-offense meth cooking charge to second-offense just days before his trial.

Suddenly he was looking at possibly spending the rest of his life in a cell.

“I’m like, ‘Wait, what’s going on? Are you kidding me?! Jesus Christ!’ I lost it,” Damrell said.

Reviewing Damrell’s conviction on appeal, the Kentucky Supreme Court unanimously agreed with him that the severe results “seem illogical,” but it concluded that state law allowed prosecutors to do what they did. “There is simply no ambiguity in this statute,” the high court ruled.

Nearly a decade after the trial in Rockcastle Circuit Court, though, most of the participants say they have regrets.

“It really hurt me,” said Kentucky State Police Trooper Scottie Pennington, who arrested Damrell and was the sole eyewitness against him. “It bothered me emotionally that he got so much time. He needed to go to jail for a while, but not that long. Honestly, I know the fella, and he’s a decent guy. I think he’s got a good heart.”

The trial judge, Circuit Judge David Tapp, declined to speak publicly for this story. But during the trial, Tapp expressed skepticism about the use of old drug possession charges to elevate this case to a Class A felony.

“Where’s the logic in the sentencing structure for that?” Tapp asked prosecutors. “I do have problems with it, conceptually.” Finally, however, Tapp relented. He urged defense attorneys to appeal and see what higher courts had to say about the enhancement.

In an interview, prosecutors said they offered Damrell a plea deal in exchange for only four years in prison. They expected him to leap for it. To their great surprise, he insisted on his innocence and demanded a jury trial. That was his mistake, they said.

“This led to a harsh result. I wish he had taken the offer I made him,” Bartley said.

“This might be a law the General Assembly needs to look at. Do we want to let simple possession charges enhance up to a Class A felony?” Bartley said. “This case is just — to me, it’s part of the larger picture. We need to decide as a commonwealth what we think merits the most prison time. Who do we think needs to be incarcerated and for how long? What are we truly trying to accomplish when we lock people up?”

Stories like Damrell’s help explain why Kentucky packs its prisons and overcrowds its jails while the majority of states have reduced their inmate populations over the last decade through different reform measures, said Damon Preston, Kentucky’s Public Advocate, who oversees the public defender system.

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Damon Preston

“We’re not really accomplishing anything useful with these cases other than sending a lot of people to prison for a lot longer than they need to go,” Preston said.

“I’ve got to say that Mr. Damrell’s situation is one of the most extreme cases that I’ve ever seen,” Preston said. “One, I think it was a bogus enhancement because he had no prior manufacturing conviction. And two, because it’s a Class A felony, it was automatically classified as a violent offense despite the fact that it involved no violence whatsoever. Everything about this case was wrong.”

A dropped jar

On the morning of Aug. 23, 2010, Pennington drove a state police cruiser on U.S. 25 in rural Rockcastle County with three prisoners in his back seat.

The trooper saw a yellow all-terrain vehicle illegally cruising south in the road’s northbound lane, nearly hitting a truck, he said later. Pennington turned on his lights and siren and tried to stop the ATV. But the driver fled across a nearby yard, jumped a wide ditch and disappeared into the woods.

When the ATV driver glanced back over his shoulder, Pennington said, he recognized him as a local man, Brian Damrell, who sometimes worked installing vinyl siding and seamless gutters.

Damrell had a history of scrapes with the police, mostly minor, including a prior arrest by Pennington. The trooper would be the only eyewitness linking Damrell to the scene. The prisoners sitting in his back seat later testified that they couldn’t see the face of the man on the ATV because he sped away too quickly.

Pennington said a black zippered bag fell off the ATV during the chase. He found it in the yard. Inside the bag was a glass one-quart jar containing the ingredients of methamphetamine — “a one-step meth lab,” as he described it. A sample from the jar was confirmed as meth at the state crime lab, Pennington said, although that sample was destroyed upon testing.

The bag and jar rode around in the trunk of Pennington’s cruiser for the next year, under the jumper cables, because he forgot to package, tag and log them into evidence until the day before the trial began. They never were checked for fingerprints.

“Several things have been sloppy, judge,” prosecutor Bartley acknowledged during the trial, talking about the evidence handling. “I’m not happy with the state of the evidence. Do I wish it had been performed differently? Yes, I do.”

(Pennington would make headlines in 2017 when a video camera at a Rockcastle County business captured him punching and kneeing a man who was standing in front of him while he investigated a theft complaint. Pennington recently told the Herald-Leader the man was a suspect who had run away from him and then resisted his attempts to place handcuffs on his wrists. The Kentucky State Police defended Pennington’s actions as appropriate to the situation and named him its Trooper of the Year a few months later.)

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Trooper Scottie Pennington testifies at Brian Damrell’s trial in 2011.

On the afternoon of the ATV chase, Pennington went to Damrell’s home in Berea, across the Madison County line, and arrested him without incident. The charge was first-offense meth manufacturing.

“I was lying in bed with my girlfriend when he showed up,” Damrell recalled. “He came in hollering, ‘Get up! Get up! I’m here to arrest you!’ I said, ‘Arrest me? For what?!’ He said, ‘You know what for!’ He dragged me out into the yard in my underwear. My old lady had to throw my clothes out to me.”

Speaking to police, testifying at trial and again in a recent interview with the Herald-Leader, Damrell denied that he was the ATV driver that morning or that he cooked meth.

“I wasn’t guilty,” Damrell murmured to jurors in 2011 in a quiet voice that they evidently didn’t believe. “I wasn’t guilty in this matter.”

He had two alibi witnesses — his fiancée and his brother — who said they were with Damrell at different times that morning as he drove around the area in his car doing errands. However, prosecutors told jurors the pair were not credible because of their personal loyalty to Damrell.

Road to ruin

Two prior convictions for drug possession made it possible for prosecutors to enhance Damrell’s meth charge and classify him as one of the most dangerous criminals in Kentucky.

The first conviction was straightforward. In March 2004, Pennington stopped a car in Berea for speeding. One of the passengers was Damrell, who consented — for reasons unclear to him in hindsight — to let the trooper search his body. As it happened, Damrell was carrying a marijuana cigarette in his pocket that night. He pleaded guilty to a misdemeanor charge and received probation.

The second conviction was anything but straightforward. In 2003, the Richmond Police Department ran an undercover drug operation using an informant, Ronald Crabtree Jr., who had his own addiction problems and criminal history. Crabtree later would go to prison for the brutal physical abuse and murder of a 2-year-old girl.

One of the local men that Richmond police arranged for Crabtree to call with a request to buy drugs was Virgil Hensley. On Sept. 11, 2003, Hensley met Crabtree inside the town’s Captain D’s restaurant to sell him meth. Hidden nearby, police monitored the deal.

Based on evidence from the sting, Hensley pleaded guilty to trafficking in a controlled substance for a sentence of five years in prison. He died in the West Kentucky Correctional Center in 2006, age 35, following a fight with another inmate.

All of this proved significant to Damrell because Hensley was a friend of his whom he gave a ride to Captain D’s. Damrell was outside in the car smoking a cigarette and flipping through CDs as the deal happened. He and Hensley both denied that he had any knowledge of what Hensley was doing inside the restaurant. But he was the driver, so he was charged with trafficking, too.

Unlike Hensley, Damrell refused to plead guilty.

“I didn’t buy or sell no drugs,” Damrell said in his recent prison interview. “I worked construction, so I won’t lie, I knew a lot of people who was into that sort of stuff. But I wasn’t doing that.”

Prosecutors’ repeated attempts to imprison Damrell in this case ended in shambles.

Crabtree — their eyewitness — disappeared on the morning of the first trial, not wanting to testify. After Crabtree was tracked down and jailed, the second trial collapsed when it was learned that Crabtree and one of the jurors “knew each other and partied together ... had done drugs together,” according to the judge, who angrily jailed the juror for not disclosing this during jury selection.

Finally, prosecutors offered Damrell a plea deal: complicity to drug possession, a Class D felony, in exchange for probation, recognizing that he already had spent 150 days in jail. Reluctantly, in December 2004, Damrell signed the necessary paperwork.

“I just knew I didn’t want to risk going to prison. I’d already spent six months in the Madison County Detention Center, which had more than 400 people in it. It was way, way overcrowded. I figured if I could get this done with, let’s get this done with,” Damrell said.

“At that point, I didn’t know anything about the law or that this could come back and be used against me in the (meth manufacturing) case,” he added.

It wouldn’t have mattered. Under Kentucky law, the marijuana misdemeanor was enough to enhance his meth making charge to a second-offense, Class A felony and brand him a violent criminal. All prosecutors needed was a single drug conviction on his record. Once the state trooper found a joint in his pocket during a traffic stop, they had it.

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Eastern Kentucky Correctional Complex John Cheves jcheves@herald-leader.com

‘Just ain’t right’

The primary lesson to draw from Damrell’s story is that he should have accepted the plea deal for four years in prison, said Commonwealth’s Attorney Eddy Montgomery in Somerset, whose office oversaw Damrell’s meth manufacturing prosecution.

“You’re gonna get a better deal generally on a plea,” Montgomery said.

“I mean, it’s your constitutional right to go to trial,” he said. “But if you do, you need to know what the possible penalties are. You’re exposing yourself to risk. If you accept responsibility, if you spare the state the time and expense of a trial, you get a better deal.”

That’s a terrible lesson, said Preston, the state’s public advocate.

“If the prosecutors thought that was a four-year case, then why are we locking him up for 16 more years?” Preston asked.

“The truth is that prosecutors stack charges to get people to take plea deals, and then they hit people much harder if they refuse to accept a deal,” Preston said. “Defendants who agree to waive their constitutional rights get a much lighter sentence. Defendants who ask to go to trial end up getting hammered if they lose, as if they deserve extra punishment for insisting on their right to trial.”

In prison, Damrell fills his long, empty days writing fruitless legal appeals and letters seeking help from Kentucky’s elected officials. State House Minority Leader Rocky Adkins, D-Sandy Hook, sent back a sympathetic note calling his situation “an important subject for study.” Most politicians don’t respond.

“Nobody don’t want to listen,” Damrell said. “They think I’m just mad because I’m in prison. I’m not mad, I’m hurt. I’m devastated because I’ve been in here eight and a half years and I’m not even halfway through. My youngest baby will be 25 or 26 years old when I get out.”

“I tell people, ‘We need to change this statute.’ The Supreme Court said that what happened to me was illogical but they couldn’t do nothing about it because that’s the way the statute was written,” he said. “This whole thing with enhancements? They got to enhance this to something it was not. They basically got to make it up. It just don’t make no sense to me.”

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John Cheves is a government accountability reporter at the Lexington Herald-Leader. He joined the newspaper in 1997 and previously worked in its Washington and Frankfort bureaus and covered the courthouse beat.
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