Wednesday, February 29, 2012

Attorney for KU’s McLemore suggests entrapment defense in minor in possession of alcohol citation


An attorney for a Kansas University basketball player who is fighting a minor in possession of alcohol citation has mentioned an entrapment defense.

Ben McLemore, 19, faces a misdemeanor charge after he received a ticket Nov. 4 from a state Alcoholic Beverage Control officer. The officer alleged McLemore was found with a Red Bull and vodka at Abe and Jake’s Landing, 8 E. Sixth St.

Lawrence attorney Al Lopes filed the Feb. 17 motion asking District Judge Peggy Kittel to order prosecutors to disclose to the defense the identities of ABC officers and “decoys” and other information about the alleged events or to dismiss the case.

“The identity of all ABC agents and decoys is material to his defense of entrapment,” Lopes wrote.

Lopes gave this version of events in the motion:

l McLemore went to Abe and Jake’s that night but presented proper identification and wore a bracelet identifying him as underage and not eligible to purchase alcohol. He stayed away from the bar.

l While he talked with friends, “an unknown” female approached and offered to buy a drink. McLemore did not know her but accepted her offer. She purchased it with her own money, and he never went to the bar with her.

l When she returned she handed him the drink and left. He never saw her again.

l McLemore then was about to dispose of the drink “because he wore the bracelet and knew he was not supposed to drink,” but an ABC officer apprehended him.

“The only purpose of the ABC agents’ action was to catch a minor in possession just to institute a criminal prosecution,” Lopes wrote, adding the identity of the names of all ABC agents and their decoys will allow the defense to subpoena individuals as witnesses.

“We have responded to Mr. Lopes’ entire (earlier) discovery request from Jan. 13,” Douglas County District Attorney Charles Branson said. “We have no information in our records to suggest the facts of the event as recited by the motion are credible.”

McLemore, a freshman from St. Louis, is ineligible to play in games this season because the NCAA declared him a partial academic qualifier.

A hearing in the case is scheduled for Friday.


Ralster Jayhawk 8 years ago

Hard to guage intent, and obviously Lopes' defense statement is worded with the appropriate bias towards his client (BigMac)...but the fact that an "unknown female" approached, asked, and bought him the drink, then quickly left the scene, only to be followed quickly by these "ABC" officers sure does sound like something "set up" and fishy...(or should I say "tiger-y", or "antlery"). Things that make you say "hmmm....".

Good luck to BMac. Hey, pontificate to high-heaven all you want about the apparent admitted fact Ben said "yes" to her offer to buy him a drink, but I like to see where "she" ranks on a 10-scale...just to gain a proper context in a bar scene on some naive starstruck youngster "saying yes" to a female...


Omari Miller 8 years ago

Right. To most guys in a bar, if offered a drink by a decent looking woman, a "yes" will follow whether or not they have any interest in the drink itself.

B-Mac may have an "attractive nuisance" tort claim available to him.

SaltLakeHawk 8 years ago

Seriously. If the girl is hot enough, I don't care what she says.

[her] "Hey, Salt, wanna go outside and fill envelopes with anthrax?"

[me] "Y E S ."

[me again, following her outside] "Did you just call me Salt?"

ryanminor 8 years ago

Salt that is so fn funny i spit on my PC!

onlylookin2score 8 years ago

not to sound to ignorant to KS general statute.. being I live in NC now, but is "attractive nuisance" a executable tort their now?

sleepy33 8 years ago

Attractive nuisance isn't a tort in and of itself, but a theory of liability based on a landowner's duty to child trespassers. Kansas follows the second restatement test, as does North Carolina, incidentally.

Kc Ticketguy 8 years ago

I dressed up as an attractive nuisance for my 2L halloween party. It was pretty funny.

Ian Legler 8 years ago

That is freaking fantastic!!! Thank you for the humor.

ahpersecoachingexperience 8 years ago

Did you order the code red (bull)!?!?!?!?!?

Lol, I crack myself up!

chalked 8 years ago

Seems like a tall tale to me. Ben, take your lumps and move on.

JayHok 8 years ago

North Carolina and Duke visits paid for by a Carolina friend. Sounds like he'd have to sit out 9 games if he goes to Duke or UNC but might be off the hook if he goes elsewhere. Do the Carolina schools get in trouble for having a booster doing this even if he doesn't sign with them?

Marcia Parsons 8 years ago

KU was put on probation and not allowed to defend their title in 1989 because Larry Brown gave a recruit money for airline tickets to visit a sick grandparent or something. That recruit never signed with KU. I'm assuming the rule is still the same.

John Randall 8 years ago

The trip the recruit needed money for (who went elsewhere) was to attend the grandparent's funeral.

Does anyone else wonder if (someone?) hired the kid to make a visit to KU and come up with a sob story a man like Brown would fall for?

No, I don't mean an MU fan. I was actually thinking of Billy Tubbs.

JD Roth 8 years ago

Fijitiger's Corner on"Debunking the myth of ku's "tradition" says it was much more corrupt than buying a plane ticket for Vincent Askew that put KU on probation after the 1988 National Championship. But in reality, that's what happened and nothing more.

As for Lopes defense of McLemore, Ben is entitled to that defense and he is entitled to enter an establishment, obtain the proper bracelet, and not expect to be entrapped as he obviously was in the chain of events described in Lopes motion to the court. If the prosecution can't produce the live witnesses, i.e. the two actors who allegedly entrapped Ben, then the court must dismiss this action as a matter of law.

Matt Bowers 8 years ago

Did the 'ABC" under covers grab anyone else that night at Abe and Jakes? Was he a target because he is a KU basketball player and they wanted to send a message? Most importantly, can the judge "handle the truth?"

Rock Chalk

Geezer 8 years ago

Sounds like a good lawyer with a familiar name. Is that the Jaywahk from the "old days"?

JD Roth 8 years ago

Al Lopes played on the team that got screwed in 1966 in the Texas Western game.

jhox 8 years ago

Stopping 18 to 20 year olds from drinking in college towns is futile. Their energies would be better spent trying to stop high school age drinking rather than hanging out in bars trying to catch college kids. I'm not suggesting breaking the law is right. These kids are in the wrong, but in the scheme of things, there are a lot better places for police to focus their energies.

omng392 8 years ago

Unless there is some type of rule he broke with the university I don't see why his lawyer wouldn't plea this out to an SIS and double the fine. He must have a case....

Kc Ticketguy 8 years ago

SIS ? You must be someone who has dealt with a criminal case in MO. A suspended imposition of sentence doesn't happen in KS. I think your probably talking about a diversion.

JurisJayhawk 8 years ago

Ironic, I was up in Federal Criminal Prosecution today and my case was an Entrapment Defense case. Circuit courts split but the Federal court followed a 5th Circuit decision (Hollingsworth). Interesting, indeed!

JurisJayhawk 8 years ago

Well, I'm just a law student so I'm not going to act like because of that I "know it all," but this really depends on things we don't know at this time. Federally, they look at predisposition like if you've done this before or your willingness to do it. They also look at positional factors. Like I said, we need a bit more information to say which way this could go. Again, I'm not a lawyer so don't rely on anything I said....just my thoughts at this point.

Kc Ticketguy 8 years ago

I'm a criminal defense attorney. I did a blog post on why this is actually kinda a big deal for him.

It's not the worst thing in the world but MIP does have a little bit of teeth.

Kent Wells 8 years ago

I did the same thing numerous times in college. However, I usually just disposed of the alcohol by drinking it to not offend the hottie that purchased it for me. So, I disposed of it instead of drinking. Of course, I had the sense to remove the bracelet too.

NH_JHawk 8 years ago

Under aged drinking and partying while in college is nothing new. Apparently UCLA's players have been taking things to a whole new level the last few years. This is an absolute bomb for Ben Howland and UCLA's basketball program. Whoa!

KGphoto 8 years ago

Yeah, I think Howland may be taking Brett's place at Baker next year.

Jonathan Allison 8 years ago

I always got a ribbing from classmates when I would carry around my mostly empty bottle for an hour or two so that I wouldn't have to buy another. Not because I was DD, but more because I didn't want to get drunk or have a hangover or have to urinate every 20 minutes or have to spend another couple bucks on another drink or whatever.

Bee Bee 8 years ago

Pay the fine and move on. You got caught young man.

rockchalkchampionship 8 years ago

I work at Abe & Jake's and it's not uncommon for ABC to hand out 7 or 8 minor in possesion citations when they show up.

REHawk 8 years ago

One of life's pissant tough lessons, Mac Attack. A tiny grain of sand in the grand hourglass of one's time. Exposure to a new set of games, with sundry mazes of catches to avoid, rules to navigate and honor, subsequent legal twists and turns to inspire awe. Whatever the long postponed outcome, bear up with dignity to your personal decision on that night of Nov. 4, walk off with rueful self-awareness and determination to stay focused for a marvelous coming out late this coming November. The Jayhawk Nation of rabid fandom awaits your input to the storied tradition of winning Kansas Basketball.

Brett Glover 8 years ago

Ben, I hope this doesn't keep you from having a worthwhile college experience. A little tip, don't do something publically if it's illegal.

REHawk 8 years ago

BenMac, here's the thing. That girl quite possibly did work entrapment for Kansas Alcohol and Beverage Commission; but also might have been a friend of a cub reporter who chanced upon an opporunity to create news. Or perhaps she was a Mizzou student who met the challenge to stir mayhem. Or just a dizzy flirty belle who chose to reach out to a prominent Jayhawk recruit. Whatever the case, evidently she was not apprehended for purchasing a drink for a minor. And if you were arrested pronto, after being handed the drink, then your attorney will build a case which will most likely get the case dismissed, or at least clear your personal legal record. the meanwhile, this situation and the public write-ups have cast a foul haze over your personal decision making, and upon Bill Self's basketball program. I predict that you will soon step away from the fiasco a wiser and stronger person and team member. Stay channeled and make the very most of the opportunity available to you as a Kansas scholar/athlete. We've witnessed a few other highly talented players depart the program prematurely after making fools of themselves. Jayhawk Basketball equates with pride and winning, both on and off the court. The James Naismith/Phog Allen tradition deserves the very best from all of us.

JD Roth 8 years ago

She was an actor that is why. Which solidifies Lopes case.

CanadaHawk69 8 years ago

I notice that the lawyer, Al Lopes, is himself a former KU player from the mid-sixties, starting for the team that should have won the national championship in 1966. Maybe he understands what the players have to go through?

REHawk 8 years ago

And Marcus Morris, if any of these comments should happen to catch your attention, I am speaking to you, too...just as I did to Mario Chalmers soon after he entered the realm of professional basketball. You guys and Brandon Rush are Jayhawks, role models to multitudes of young people and cheering fans. Live public lives of dignity and pride.

Ryan Wood 8 years ago

"McLemore then was about to dispose of the drink 'because he wore the bracelet and knew he was not supposed to drink,'"

I was born at night, but.....

Tony Bandle 8 years ago

I'm sure his entire family texted him and chastised him with " That would never have happened in Columbia."

Of course, it would be true. Under Age Drinking 101 is an elective at dear old Misery.

KGphoto 8 years ago

Interesting comment. It makes me wonder what will happen now with our old half-dead rivalry. Will it ever truly die just because we don't play them in conference? No, of course not. But what will happen to the insults? What will happen with the frequency of them? What about the hatred? Will it soften? Are we going to re-direct our hillbilly humor toward West Virginia? How are we going to feel about Misery in 2 years? 5 years? 10 years? That's when kids born today start becoming real Jayhawk fans and don't know anything of the rivalry from personal experience, just from our foul words toward Misery, and stories of our bygone battles.

Personally I plan to encourage the hatred forever. I hope it sticks.

KGphoto 8 years ago

I know, another Hitler diddy, but it still makes me laugh. "Milwaukee's Best and Meth" "Tweakers". Ha! I plan on passing this down to the new rivalry-less generation.

Warning: some typed profanity, or possibly real profanity if you speak German.

JurisJayhawk 8 years ago

You what he can text them now? On winning an 8th Straight Big XII title - "That would NEVER happen in Columbia." haha

Joe Baker 8 years ago

The Shabaaz recruiting just got even more interesting.

jaybate 8 years ago

I tend to agree with most that this will probably go away some how and not stop BenMac from playing for KU.

But if it does not go away, I could see things getting pretty dicey for BenMac at KU.

Self suspended Brady Morningstar for a semester for some kind of a DUI that would not go away.

And Brady had been a starter for KU the previous year.

So prior experience suggests BenMac might be in line for a semester suspension, if convicted.

But the plot thickens when you add in that BenMac is called a possible OAD and Self would face the problem of how much to invest in a guy who might only play half a season and jump.

Self has a history of favoring players who can help the program the longest. Yes, he will play start an OAD like Xavier, but he won't make him the number one option. He won't turn the team over to him. Yes, he will start an OAD like Josh Selby, but he won't give him the point and wind up green at point the following season.

So: would Self make BenMac a cornerstone for half a semester, when he will have other options, based on incoming recruits already signed, and based on some others that were at the KU-MU game that might sign, or still others out there that Self might late recruit?

BenMac is supposedly a pro-type player, according to Marcus and Tyshawn, who have praised him publicly, so there would be a strong temptation to play him half a semester, but also a strong temptation to figure he might jump after only half a semester.

If convicted, and if BenMac were willing to commit to two seasons, then Self might go ahead and suspend him half of next season, and then get a full season from him the following year.

But Self has already had some experience with BenMac showing serious devotion to him, and then suddenly playing the field, because his mom reputedly wanted him to do so.

How much would Self be able to trust BenMac's word that he would come back the extra season?

Further, if Self were to sign one of the players that attended the KU-MU game, he would then be in the position to not even have to deal with the BenMac issue further. He could just jettison him end of this season, BenMac could go to the pros, and Self could get on with the business of building next year's team, without ever having to go through suspending him, dealing with the PR of that suspension, and then the head ache of engineering a team with a particular kind of scheme that BenMac can be slotted into second semester, but that can also win big the first semester. That would be a headache he might say, "Hey, I don't have to deal with that kind of shizz anymore. I'm established and I've got other players to work with."

It is just seemingly endless how many ways players can screw up that feed into--in largely unprecedented ways--the complexity of team building. If Self's hair is real, its truly amazing, because he's had plenty of reasons to tear it out over the years. But i guess that comes with "they call me coach."

jaybate 8 years ago

Well, by god, konkey, I like simple. :-)

I hope you are right.

I'm not too sure your assessment squares with my lumbago addled recollections, however.

Its been my impression that guards and wings are ready to go and play very shortly after being born if, in addition to coming out with accessory placentas, they come out with NBA bodies, also, especially the PGs.

Its the dang bigs that take awhile to develop.

And that is why the NBA is famous/infamous for drafting on potential lots of big guys from virtually any longitude and any latitude.

But again, perhaps my lumbago has shorted the neural net connections.

HawkKlaw 8 years ago

Sounds like BMac got "stung." It's okay Ben, it happens to the best of us. Don't let it get you down.

Funny how these agents don't have anything better to do than make a common college student into a criminal. Sweet career choice, bro! At least BMac didn't do what I did and tell the agents that they're "f*ing worthless." As I found out, the first time you do that you get sent straight to anger management classes! haha Then you get to sit and listen to guys that have problems with hitting people. Goodtimes!

fansincewilt 8 years ago

Sounds like a pretty expensive, very savvy attorney. Who's is paying the bill for this attorney?

texashawk10 8 years ago

Entrapment or not, Ben made a stupid decision by accepting an alcoholic beverage while wearing a bracelet indicating he was underage and he got busted for it. He compounded the first stupid decision by making another stupid decision and not showing up for his original court date and made headlines when he was arrested for skipping that court date. Accept responsibility for your poor decision making, take your punishment like a man, and work to become a better person who doesn't make poor decisions like these two that I'm sure have caused many unnecessary headaches and distractions for yourself and your teammates.

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