114 Days Inexplicably Lost

There is no explanation for why the name Donna M. Small came up as a perp. Somebody must have given it up, but who, why, on what basis, remains a mystery. And that she was indicted along with a mass of others has legal, if not factual, significance, since an indictment theoretically means that a grand jury heard evidence and decided that there was probable cause to believe that Small committed a crime.

But when the offense relates to a mass of people, the reality is that it’s not a grand jury focused on one individual, but a mass offense and random names they’re told by cops. There were pictures, video, and somebody said one of them was identified as Small. So Small was indicted.

Donna M. Small was arrested last year on charges she dealt cocaine to a police informant.

But, as evident by a video of the drug deal recorded by the informant, Small wasn’t the seller, according to court documents.

It took 114 days for Norfolk police and prosecutors to realize the error and drop all charges.

The problem wasn’t that the prosecution didn’t have evidence. It’s that nobody bothered to pay much attention to the evidence, the video, and took for granted that whoever was identified was the person in the video. This might seem surprising to some, given that the stories told suggest that law enforcement works very hard to make sure they catch the right criminal, and perhaps that’s true for some. But when they’re going after a bunch, particularly in drug conspiracy cases, they all blend.

Small was one of about two dozen people arrested March 1, 2017, as part of a large-scale sweep involving more than 150 local, state and federal law enforcement officers. It was called Operation Riptide.

Seventeen defendants were prosecuted in U.S. District Court in Norfolk while the rest, including Small, were handled in Norfolk Circuit Court.

Officials at the time described the sweep as the culmination of a months-long investigation by the Bureau of Alcohol, Tobacco, Firearms and Explosives . This week, Beverly described it as a joint investigation between Norfolk police and federal authorities.

These are the sorts of cases that get headlines, huge drug conspiracy busted, drugs and guns seized. Agents get medals. Cops get new shields. Everybody gets to drink at the trough of saving the children from drugs. Heroes, all. The give-away is that the operation got a cool name, “Operation Riptide,” proving that it was a really big deal.

So what’s the big deal of getting one ID wrong when you’re going after dozens of drug conspirators? Well, if you happen to be the one whose name was inexplicably attached to an alleged perp, get arrested, remain jailed because you can’t come up with the bail for 114 days, it’s a big thing. One might suppose that these heroes would put in a little effort to make sure the person they’ve pinched is the same person as the one in the pictures.

Small was incarcerated until June 22, shortly after prosecutors provided her defense attorney a still image captured from the video.

“It was obvious,” attorney Asha Pandya said in an interview, adding that her client appears about 50 pounds heavier than the woman in the footage.

But obvious though it may have been, not obvious enough.

Pandya said she didn’t catch the issue sooner because prosecutors initially only provided her a blurry black-and-white photo of the alleged dealer. She recalled thinking at the time it didn’t look like her client and bringing up her concerns at an April 10 bond hearing. A judge gave Small a $5,000 secured bond that day, but she couldn’t come up with the necessary $500 and had to stay in jail.

It wasn’t until a decent color image of the person who allegedly conducted the drug deal was turned over on the eve of trial that Pandya was able to prove her point. Why this wasn’t revealed earlier isn’t clear, but more to the point, Pandya may not have had access to the evidence conclusively showing that Donna M. Small wasn’t the person, but the cops, agents and prosecution did.

[Defense attorney Kevin] Martingayle said police and prosecutors failed to take his client’s protestations of innocence seriously, even in the face of photographic evidence. He said this wasn’t a case where new evidence came forward at the last minute that set Small free.

“All they had to do was literally look in their own file,” he said. “Is that too much to ask?”

When they’re too busy getting their backs patted for their huge drug bust, and they don’t really give a damn about one silly completely misidentified woman who wasn’t the person at all, but somehow got her name mixed up in this bigtime drug bust, getting it right is far too much to ask. Except to Donna Small.

Curiously, whether her suit for the 114 days of utterly wrongful and needless incarceration prevails isn’t nearly as clear as one might think. The problem is that she was indicted, which means a grand jury found probable cause, which means it wasn’t the cops’ fault because they had probable cause to arrest.

The lawsuit seeks $500,000 in damages, plus interest and legal fees. In court documents, the city is claiming qualified immunity – arguing the officers named in the suit did not violate “any clearly established law.”

In an interview, Deputy City Attorney Michael Beverly added that Small was arrested subject to a “lawful indictment” handed down by a Norfolk grand jury.

Making a mistake by arresting the wrong person, in itself, isn’t a constitutional violation. Was the fact that she was indicted for no better reason than a cop named her because he had the wrong name a violation? What about the fact that she remained in custody for 114 days because no one, cop, agent or prosecutor, could be bothered to compare the human being they arrested to the person in the pictures? Who knows?

H/T My dear former editor, Marilou

9 thoughts on “114 Days Inexplicably Lost

  1. wilbur

    An underreported, if not unreported, circumstance is when a probable cause arrest occurs and the arrestee gives the name, address, dob of a different person. The defendant may even have an ID with that information on it. Then the defendant is ROR’d or bonds out, sometimes never to be seen or heard from again.

    Usually the victimized party is related to or is a former acquaintance of the defendant. While this causes all sorts of problems for the victim, it is remediable, because we know who it is. If the defendant has never been arrested before (a rarity) we may never find out who it is. In either case, the problems this causes to innocent people are numerous. I’ve seen cases where innocent people get arrested on bench warrants, lose their job, not get hired for a job, have their name purged from voting rolls … I’m only scratching the surface.

    Just pray it never happens to you or your child.

    1. SHG Post author

      Pretty sure I’ve written about that in the past, but whether or not that happened here is unknown.

  2. B. McLeod

    One of my professors used to say the law did not concern itself with Small things. Apparently the prosecutors took that to heart.

    1. SHG Post author

      That’s weird, because I always de minimis non curat lex. I wonder if we’re distantly related?

      1. Fubar

        Damnit! Trolls, all of you!

        Now I’m obliged to quote a work for which I claim no credit, carved onto desktops in law school lecture halls since time immemorial.

        There once was a young man named Rex,
        With diminutive organs of sex.
        When caught for exposure,
        He said with composure,
        De minimis non curat lex!

Comments are closed.