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Plea of ignorance in jail visit accepted

Thursday, January 09, 2003

By Jim McKinnon, Post-Gazette Staff Writer

A judge said yesterday that a Highland Park lawyer was naive and stupid but not guilty of trying to smuggle marijuana to a client in the Allegheny County Jail last summer.

Richard McCague, 48, who is suspended from his job as an assistant county public defender, had been charged with possession and possession with intent to deliver marijuana.

But his attorney, Patrick Thomassey, successfully argued that McCague didn't know the package he was delivering contained marijuana.

Thomassey said McCague had allowed an inmate, Germaine Cook, to dupe him into taking the drug into the jail because McCague thought it was tobacco. He acknowledged that McCague knew he was violating the jail's policy that bans all tobacco products. McCague believed that Cook, who is awaiting trial on robbery charges, was desperate for the tobacco so he could use it in jail to buy his safety from other inmates.

McCague and several character witnesses testified during his non-jury trial that started Monday afternoon that McCague, while an intelligent barrister, is naive and gullible when it comes to dealing with some of the defendants he represents.

"Your activity makes all lawyers suspect and demeans your profession," Common Pleas Judge Jeffrey A. Manning said before issuing the not-guilty verdict on the drug-smuggling charge. He did find McCague guilty of disorderly conduct and ordered him to pay a $300 fine for violating the jail's policy on tobacco.

Transcripts of the trial also will be sent to the state Disciplinary Board, where McCague faces possible sanctions that could cost him his law license.

"I'm somewhat embarrassed by the whole thing," McCague said after the trial.

After listening to closing arguments yesterday from Thomassey and Assistant District Attorney Matthew Wholey, Manning said the case boiled down to a single issue -- McCague's state of mind at the time of his arrest June 16.

Wholey argued that McCague showed, "almost deliberate ignorance. You can't just say, 'I didn't know what it was.' His level of negligence rises to a level that he should know that he was carrying contraband into the jail."

McCague, an assistant public defender for more than a decade and the married father of two, admitted on the witness stand Monday that he obtained what he believed were three packets of tobacco, a pack of cigarettes and a small box of cigars from a woman who was a friend of Cook's. He said that he did not know that the woman, whom he identified as Patricia Ann Marshall, had concealed 9.83 grams of marijuana inside a plastic sandwich bag and covered it with tobacco in one of the three packets.

Thomassey argued that Wholey had to prove McCague knew he was carrying marijuana in order to be convicted.

"Defendants always make up stories," Wholey argued. "If this was a person off the street, we would assume that he knew what he was carrying into the jail."

Manning agreed with Thomassey.

"That's not the legal standard," Manning said to Wholey. "He must knowingly or intentionally have brought it in. Not, '... should have known.'

"The sole issue seems to be the state of mind of the defendant," Manning continued. "It is abundantly clear that you were aware that what you were doing violated [the county jail's] policy against contraband. We sometimes confuse naivete with stupidi-tay."

Cook had hired McCague as a private attorney, not as a representative of the public defender's office. McCague did not disclose how much he was paid by Cook, but he acknowledged that Cook authorized on various occasions for $25-installments to be given to McCague from his personal inmate account.

Wholey argued that McCague had visited Cook 23 times in less than six months while other clients to whom McCague was assigned by the public defender and who are facing similar charges as Cook, saw McCague only once during the period.

On the witness stand, McCague explained that he visited Cook more because he was a paying client. He no longer represents Cook.

He remains suspended without pay from the public defender's office.

Public Defender M. Susan Ruffner, McCague's boss, said yesterday that the assistant public defenders' labor union has filed a grievance, which will be arbitrated to determine whether McCague should be reinstated.

Jim McKinnon can be reached at jmckinnon@post-gazette.com or 412-263-1939.