Friday, March 2, 2012

Prosecutor denies allegations of entrapment by KU basketball player accused of illegally possessing alcohol


A Douglas County prosecutor in court Friday denied that an Alcoholic Beverage Control officer used someone undercover the night he wrote Kansas University basketball player Ben McLemore a citation for minor in possession of alcohol.

McLemore’s defense attorney, Al Lopes, has alleged an unknown woman bought McLemore, now 19, a drink on Nov. 4 inside Abe and Jake’s Landing and that an ABC agent ticketed McLemore — who did not take a drink — before his client could dispose of the Red Bull and vodka drink. Lopes says McLemore entered the club with proper identification, stayed away from the bar and wore a bracelet identifying him as underage.

“He saw the defendant drinking a drink, and that’s how (the citation) happened,” said Mark Simpson, an assistant district attorney.

Lopes has asked 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 because it would be essential to an entrapment defense.

But Simpson said that the agent who gave McLemore the misdemeanor citation was there alone, was not working undercover and that the agent said there was no one there that night working undercover on behalf of the ABC.

“That whole scenario is something that (the agent) says did not happen,” Simpson said of the defense’s version of events.

Kittel said it was an issue for a jury to decide.

“Mainly this is going to come down to a factual issue of what the agent says he observed occurred and what the defendant says happened,” Kittel said. “I don’t know how that’s going to be resolved short of a trial unless you all figure out a different disposition.”

Lopes has questioned how the ABC agent knew what was in the drink because he alleged the agent never asked McLemore that question. Lopes has also asked for more information about how ABC agents are trained and what policies they follow.

“What did they do, and did he follow it? That’s what I need to know,” Lopes said in court.

The next hearing in the case is scheduled for May 29 when a trial date could be set.

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


irvan moore 9 years, 6 months ago

i think that was a bad idea for a defense

Rob Keeney 9 years, 6 months ago

All Lopes has to do is create a little doubt.

JurisJayhawk 9 years, 6 months ago

Fact questions are jury questions. How willing was he to take the drink? Was he seeking out alcohol in other ways? Was it likely this same thing would have happened had the "government" (ABC Agent) not been involved? Was there, in fact, an undercover ABC agent who gave Ben the drink?

Who knows.....

Time will tell! Gotta give it to the defense for thinking outside the box.

Micky Baker 9 years, 6 months ago

If the ABC was behind the woman going into buy the drink, the ABC should be reprimanded by the judge. If they has someone violate the law in order to make it appear someone else also did, this is HIGHLY UNETHICAL.

Evan Ridenour 9 years, 6 months ago

The ABC does what was alleged by the defense ALL the time. It is extremely common. I personally think it is wrong myself, but I doubt the defense is going to work.

Mere possession is all that is required. The kid knew it was an alcoholic drink, and he took possession of it. That is enough. His intention doesn't matter.

Micky Baker 9 years, 6 months ago

So the woman that buys for him, if employed by the ABC, isn't guilty then? That's where the prosecutor's case is destroyed, with an ethical judge.

LAJayhawk 9 years, 6 months ago

If the woman who gave him the drink was working on behalf of ABC, that is classic entrapment. Basically, it's a government agent coaxing someone into an illegal act which is absolutely a defense and definitely reason to acquit.

However, if this is the stance ABC is taking (no one else working with them), then whether or not this mystery female was actually working on behalf of ABC would be up to the jury (question of fact, not a question of law), and pretty difficult for the defense to prove, unless they found the actual girl and she admitted as much in her testimony.

Brian Conrad 9 years, 6 months ago

ABC had been known for crazy set ups before... they tend to act as if they are Elliot Ness and all alcohol should be illegal. everyone on here that ever had a beverage before legal age.. throw the first stone.. rediculous this has become a major offense and huge money fine...

prusso25 9 years, 6 months ago

If you get caught drinking... at least have a cooler drink! Red bull and vodka? That is the real crime.

David Hewitt 9 years, 6 months ago

"Cool": hip, groovy, awesome, bodacious, dandy, divine, glorious, hunky-dory, keen, neat, marvelous, nifty, sensational, swell...

lifetimeJay 9 years, 6 months ago

It's a freaking MIP, who cares?!? Getting an MIP is almost a rite of passage for anybody between the ages of 18-21.

Mark Lindrud 9 years, 6 months ago

I got one my freshman year at KU. Not saying it was smart or I excuse what happened, but I know a lot of people with MIP's. Not doing illegal drugs, beating up girls, or getting in fights, but I do hope he learns from this. Also, is the girl who bought the drink not in trouble?

LAJayhawk 9 years, 6 months ago

From the limited information that's been published on it, I don't believe anyone knows who she is. If ABC is to be believed, they just saw him with the drink in his hand, not her buying it for him. Even if they did figure out who she is, without a law enforcement agent observing the crime, she's not going to face any charges. She would have to admit doing it, and because of the 5th amendment, they couldn't force her to do so in court (and she's an idiot if she were to admit it outside of court).

KGphoto 9 years, 6 months ago

Advantage: Defense

It almost appears the defense took the prosecution off guard with this. Personally, so far, and with what info is on the table, it would seem difficult to prove McLemore was guilty.

I'm really glad Lopes is fighting this. I always thought it was complete BS to invite a minors into a bar that serves booze in the first place. Then to have agents there to bust them... that's entrapment in and of itself!

Pitthawk34 9 years, 6 months ago

I hope I am on the jury..They had better have a HD video of the entire ordeal or NOT GUILTY. It is damn hard to believe law enforcement in Douglas county anymore.

Spencer Goff 9 years, 6 months ago

"It is damn hard to believe law enforcement anymore."


ahpersecoachingexperience 9 years, 6 months ago

I'm drinking a Zima with a jolly rancher in it right now

Andy Tweedy 9 years, 6 months ago

I think that's the "cooler" drink prusso was referring to...

spongebob 9 years, 6 months ago

Hahaha! That takes me back to early high school.

nervous laughter while looking around for ABC agent on the forum

Spencer Goff 9 years, 6 months ago

Do you have a man card? Wait, sorry... DID you have a man card?

Brak 9 years, 6 months ago

Is this Rusty? One Zima and he's toast.

s6u6r6f 9 years, 6 months ago

If it's a jolly rancher from northern cali, good on ya, then.

Micky Baker 9 years, 6 months ago

It doesn't matter. He wouldn't have been able to buy the drink himself. He had no intent to violate the law, but the woman did.

This is much different than a drug stake out.

A drug dealer approaches an undercover cop and offers to sell a dime bag (that isn't entrapment).

To use a person to get someone to violate the law who otherwise would not have been able to violate the law, if the bartender was checking IDs, is entrapment.

They need to drop this case and start acting ethically inside the ABC.

Spencer Goff 9 years, 6 months ago

Doesn't matter if he intended to pour it out, getting a drink handed to you that you had no intent to buy is still entrapment.

And I don't buy or one second that the ABC doesn't do this crap, just most kids take the MIP because they don't know any better.

My dream would be to sit on this jury and listen to the ABC discuss their ethical tactics.

Hays, KS; Oktoberfest. For fun, go and watch your ABC in action.

Jack Wilson 9 years, 6 months ago

Here's what I wonder .. in normal circumstances, this is a diversion. A preconviction probation for a first time offender. A no brainer. Why isn't this kid just taking a diversion?

Typically, a criminal record or a prior diversion disqualifies one for a subsequent diversion. What's the history here?

HawkKlaw 9 years, 6 months ago

Maybe he made fun of the ABC agents. Although it is commendable (and recommended), it'll also get your diversion denied every time!

Jack Wilson 9 years, 6 months ago

Certainly claiming entrapment will eliminate that possibility.

jaybate 9 years, 6 months ago


You might be reading this right.

And might a misdemeanor conviction violate a probation associated with that history perhaps triggering a need for another big time recruit?

Gads I hope not.

texashawk10 9 years, 6 months ago

Considering he missed his original court date that was in December I believe, I doubt the judge is willing to cut him a break at this point. Ben just needs to own up to the two stupid decisions he has made, take his punishment and move on.

jaybate 9 years, 6 months ago

That is a probable scenario I can hope for. Fingers crossed for BenMac.

He came from Missouri to help Kansas get better. He's among good company. Phog Allen. Jo Jo White. OakvilleJHawk.

This kid has to be saved!

ku_foaf 9 years, 6 months ago

Exactly. He definitely harmed his credibility. I think he is making a huge mistake by not quietly taking care of a minor legal problem.

HawkKlaw 9 years, 6 months ago

Abe & Jake's: Where the Axe body spray flows like wine!

Micky Baker 9 years, 6 months ago

Who? What? Me?

No, we didn't send in that woman who disappeared after buying a drink, (which by the way is against the law if the woman bought a minor a drink in a stake out).

Of course it's entrapment!

Spencer Goff 9 years, 6 months ago

I am shocked it took you this long to post on this forum. You are losing your touch.

Micky Baker 9 years, 6 months ago

You know. I had a MIP charge when I was in college too, except it wasn't some lady that asked if she could buy me a drink. I had it intentionally. I didn't get in much trouble for it, but when the ABC employs someone to break the law in order to get you to break the law, NO CASE.

Micky Baker 9 years, 6 months ago

Also, it is the responsibility of the Prosecutor to prove guilt. If the ABC did in fact use someone to break the law to set someone else up, that is indeed not ethical.

It is pretty hard to do this unless we assume the ABC's official are angels. Right? Don't be an idiot.

Micky Baker 9 years, 6 months ago

Let's also be clear about another thing. The Prosecutor can't use the fact that Ben was in the bar if it is legal to be in that bar if he's older than 18. If the judge is courageous, there will be ABC agents unemployed after this case is over if it in fact turns out they did use entrapment.

LAJayhawk 9 years, 6 months ago

Don't quote me boy, I ain't said..... stuff.

Katie Bieber 9 years, 6 months ago

If the ABC officer was working alone, there is no one of authority to testify on his behalf. If the burden of proof is still on the accuser, I'm not sure why another hearing is necessary. Not Guilty.

Scott Alden 9 years, 6 months ago

I have dealt with the ABC for over a decade. Their tactics always graze the side of the law and certainly aren't meant to only trap people who INTEND to break the law. Often they don't know the law themselves. When I heard about this incident, I guessed what went down. When I heard Ben's side it was damn near what I had thought.

The ABC is interested only in $$$ and not upholding the law or protecting young people. I hope his lawyer takes the ABC to the brink on this. Their decoy system BREAKS THE LAW in multiple ways starting with who signs the immunity agreement for the decoy.

Get 'em Ben.

Mark Lindrud 9 years, 6 months ago

I can't wait to see the COPS episode with this!!!!!

texashawk10 9 years, 6 months ago

So I guess saying "no thanks" wasn't an option for Ben that night? Entrapment or not, Ben made a stupid decision accepting the drink leaving himself vulnerable to getting cited. He stupider mistake came later on when he failed to show up for his original court date. Just say no and this all could have been avoided Ben. You play basketball for KU Ben which makes you a public figure and you have made two poor choices so far that have cause you way more unnecessary drama and headaches than you should be dealing with because you couldn't say no to a pretty face.

edmclinn 9 years, 6 months ago

"the agent said there was no one there that night working undercover on behalf of the ABC." this is probably a true statement, but Law Enforcement has a bunch of undercover agents in this town that do NOT work for the ABC. They have recorded me on audio tape multiple times already at the pool room. They have a "seamless". Information gathering and sharing system with a very high-tech group of undercover agents working for some undercover group in this town. Don't t let them lie to you and get off the hook of accountability for their actions. Best of luck with the defense. If needed I could help you identify some of the "regular". Undercover Agents at the pool room so you can confront and question them.

Bob Thompson 9 years, 6 months ago

The real problem is if they let Ben off the hook, then everyone else who gets a citation will use the same defense. Then they will have to have two agents at every bar. It's nice that someone stood up to them. He may be guilty, but how can they prove guilt. Do they still have the drink as evidence. I think the prosecution has an ego problem, and arn't willing to let this go, and it's a little late to sweep it under the rug.

Micky Baker 9 years, 6 months ago

If the ABC keeps having people break the law in order to create a scenario in which the law would have never broken, they would be right in using the defense.

It is not illegal to be in a bar if you're 18 or older in Lawrence. If they walked in and Ben was sitting there by himself drinking with a fake ID, they would have a case. If the ABC sent someone in there to ILLEGALLY provide alcohol to a minor, The ABC broke THE LAW. Not Ben.

edmclinn 9 years, 6 months ago

Look its real simple, Law Enforcement uses illegal and unconstitutional surveillance along with under cover agents performing social engineering against potential targets. I'd say the majority of arrests and citations given today are the direct result if this sort of illegal and immoral entrapment. They person buying the fringe was most likely performing the social engineering portion of the setup.

Ben Simonett 9 years, 6 months ago

College age kids trying to acquire/consume alcohol?

this isn't news worthy, let alone multiple reports worthy!

Who really cares? i'm going to go out on a limb and say that most of the basketball players that have come through the program the last 10 years have illegally consumed alcohol.

cobweb 9 years, 6 months ago

He can go to Afghanistan legally but can't have a red bull and vodka. Jayhawks in the 1960s would have protested.

kellerman411 9 years, 6 months ago

Like most law enforcement, this officer was picked last at recess as a kid. Don't worry though, now that he has a badge, he can get back at the world. Mass street is littered with poor homeless people and 15% of driver's on any given Saturday night are drunk, yet we use resources (tax money) to survey Abe and Jakes. A place that already enforces it's own ID checks and forces all minors to wear a glow in the dark orange bracelet.

milwaukeeJAYHAWK 9 years, 6 months ago

If this country wasn't run by a bunch of Jesus Jumpers, you can bet we'd have more lax alcohol laws. Who cares if he had a drink? Weren't we all having beers by 15 anyways?

Randy Bombardier 9 years, 6 months ago

Man, don't put down people of faith in this matter. I am a person of faith and like a good brew, good wine, good drink. The law concerning alcohol is because of its historic ruination of many a man and woman who unfortunately never learned to handle it. The biggest single problem is that we do not enforce the over-serving issues. In this case, is the bar going to be hit with a fine. Should be. So, if the ABC is setting people up and going after the bars, too, a couple of fine lawsuits and they will back off and do their job right.

Bob Thompson 9 years, 6 months ago

When I was in the Air Force if you scored low on the placement tests, they made you Air Police.... I can see that things haven't changed much since the 60's

REHawk 9 years, 6 months ago

BenMac, whatever the outcome of this legal circus, you've gotta move forward as a responsible Jayhawk, careful to stay on the straight and narrow. Two unwise decisions related to this case, something shaky involving your first prep school last season, arriving in Lawrence with your transcript not in order. Time now to buckle down, mature into a solid citizen and prove to coaches, fellow players and fans that your recruitment was not a mistake. Sounds as though you have been a model student and practice player recently. A wonderful opportunity awaits your eligibility to play significant minutes next season. I hope to see you do well.

cobweb 9 years, 6 months ago

Giving MIPs in Lawrence is like shooting fish in a barrel. You don't need entrapment. They should put lawyers under oath and write a ton of citations for the BS they spew. Come on Ben, be a man and take the punishment.

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