No trend seen in drunkenness defense

It was a defense that drew snickers from lawyers around Lexington.

Melbourne Mills Jr., his lawyers argued in his high-profile trial, was too drunk to know what was going on when two other lawyers allegedly pilfered millions of dollars from their clients in a diet-drug lawsuit settlement.

Yet Mills ultimately had the last laugh when a jury acquitted him on July 1 on conspiracy to commit wire fraud charges.

This week, another defendant in a high-profile Kentucky case had (partial) success with an intoxication defense. James H. “Jamie” Barnett avoided the death penalty Wednesday when jurors found that he murdered Clay City Police Chief Randy Lacy “wantonly” rather than “intentionally.” Barnett was drunk and high at the time of the shooting.

Could this be the start of a trend?

Not likely, several lawyers said in interviews Thursday.

“It is interesting that in two big high-profile cases that intoxication played such a role. But I think that is more of a coincidence than not,” former Public Advocate Allison Connelly said. “I don't think there is some new understanding among our culture about the affects of drugs and alcohol on the criminal mind.”

Mills and his lawyers certainly did not invent the intoxication defense. It is frequently used in burglary cases where somebody, for example, says they were so drunk they stumbled into the wrong house.

And intoxication has played a prominent role in other highly publicized Kentucky trials, including one of the most infamous trials ever held in Lexington.

Lafonda Fay Foster testified in her 1987 trial that she was so high from cocaine that she could not distinguish reality from fantasy during her and Tina Hickey Powell's five-person killing spree. Foster and Powell either shot, stabbed, ran over or burned their victims in 1986.

Foster “was just twisted out of her mind, using whatever pills she could get her hands on,” said lawyer Russell Baldani, who represented Foster during her trial. “She was extremely intoxicated. We did the best we could to use that.”

It didn't work. Foster was sentenced to death by electric chair, though that sentence was later overturned on appeal.

Defense attorneys said intoxication is a defense of last resort, one that's just as likely to hurt their client as help them.

“Until recent phenomena, I don't recall anybody having anecdotal evidence of it ever being successful,” Lexington defense lawyer Trevor Wells said.

Connelly called it a double-edged sword.

“I think jurors have a tendency to think I drink now and then, and I don't go out and kill someone,” said Connelly, who is now a University of Kentucky law professor.

Wells said he used intoxication as a defense for a man in a recent robbery trial.

The man was so hammered that he mistook a fax machine for the cash register, Well said.

Jurors saw right through that.

“Jurors are unwilling to allow people to escape responsibility because of intoxication,” Wells said.

Intoxication can be used as a defense in cases where prosecutors must prove criminal intent. When employed in a burglary case, for example, the defense can lead to lesser charges of trespassing.

Voluntary intoxication, as it's called, cannot be used in cases where prosecutors don't have to prove intent, like drunk driving.

In Mills' case, witnesses testified that he was often drunk by 10 a.m. Mills and Lexington-area lawyers Shirley Cunningham Jr. and William Gallion. were accused of cheating 440 clients out of $65 million in a $200 million settlement over the diet drug fen-phen.

Charges are still pending against Cunningham and Gallion.

Mills has previously used his alcoholism as a defense. In a 2006 civil trial, he said he had been drinking when he promised to pay an assistant $1 million if the fen-phen litigation were successful.

Jurors sided against Mills. The verdict was later overturned by the trial judge on other grounds.