No evidence exists to substantiate any criminal charges against Carmen Nance - if it existed as alleged by the GPD, it has been lost or destroyed.The small vial of a crumbly white powder that Nance along with evidence tag #D16245 disappeared about a year ago when was arrested for drug possesion by the Jack Sperry of the Galesburg Police.

Officer Sperry claims that he conducted a field test for cocaine on the powdery substance he found in a vial in Nance's shorts. The thiocyanate test is legendary for showing false positives. It's only utility is to indicate when a substance is not cocaine. It reacts immediately upon contact with cocaine to display a blue color, but given time it will give this indication with a wide range of substances, including nitroglyerine and even Benadryl. Court records indicate that officers are rarely trained well enough to understand the limits of this very crude test, which is rejected in criminal trials when challenged.

Nonetheless, Nance was incarcerated with bond set at $10,000. While incarcerated, he did not have access to the medication he might have needed to avert a life-threatening emergency. He claimed all along that the vial contained nitroglyercine fro his heart condition.

The allegations of Nance's complaint explain what happened at the traffic stop:

9.) Officer Jack Sperry conducted a traffic stop on the truck at the intersection of Farnham and Grove Street and identified the driver as Frederick J. Sasco, front seat passenger as Carmen Nance and four juvenile subjects and an adult riding in the bed of the truck. Nance was the only African American person riding in the vehicle.

10.) Officer Jack Sperry was informed by Galesburg police headquarters that Nance had an apparent Chicago Police Department warrant for driving under the influence of liquor. Officer Sperry placed Nance under arrest.

11. In searching Nance, Officer Sperry located a small glass vial which contained a white powder substance in it in Nance's front, left shorts pocket.

12. Nance informed Officer Sperry that the vial was nitroglycerine for his heart.

13. Officer Sperry secured Nance in the back seat of the squad car and transported Nance to the Knox County Jail on a charge of possession of controlled substance with a bond of $10,000.00, 10% to be applied.

14. Officer Sperry took the vial containing the nitroglycerine and allegedly conducted a field test on the substance. According to Officer Sperry and in furtherance of acting in his official capacity in pursuance of his official duties reported that the field test showed positive for cocaine.

15. Officer Sperry's reported field test was either not performed or was fictitious and false. The glass vial found on Nance's person contained only nitroglycerine for Nance's medically documented heart condition.

16. Officer Sperry reported that he sealed the vial containing the cocaine in an evidence bag, tagged it with evidence tag D16245, and placed it into evidence for it to be sent to the laboratory for testing.

17. The field test, the vial containing the nitroglycerin and the sealed evidence bag, tagged with evidence tag D16245, has, on information and belief, been destroyed.

18. Plaintiff Nance remained in Galesburg Police custody in the Knox County Jail on the charge of unlawful possession of a controlled substance, a class 4 felony, for several days. Plaintiff Nance was held without the benefit of receiving nitroglycerin for his medical condition.

One might wonder if it is commonly known that Nitroglycerine can test positive for cocaine, but numerous anecodotes are available. Several months before Nance was arrested in Galesburg, a 6 year old came home from school with a small vial similar to the one that Nance had in his possesion. The vial was taken to the police, and was "field tested" as cocaine.

On May 19, 2008 Kia Hall Hayes reported the incident in New Orleans The Times-Picayune. According to Captain Ron Ruple, of the New Orleans Police Department:

"Subsequent testing showed the substance to be nitroglycerin, a common medicine for treating heart conditions. …Nitroglycerin tablets can turn into a powdery, white substance as they erode over time, he said."
(see: http://www.nola.com/news/index.ssf/2008/05/vial_found_by_sixyearold_conta.html )

Since the pills are only to be used in case of a cardiac emergency, a patient may carry them around for years, during which time they disintegrate - because they are by design meant to easily dissolve under the tongue. So they end up looking like white powder in a vial - and a there is usually only one dose in the vial.

In the case of Nance, the evidence was lost, but his incarceration could have been challenged nonetheless according to precendent cited by Larry D. Wechter, who had a conviction reversed on appeal more than 10 years ago, by demonstrating the inadequacy of the field test. According to Wechter, In the case of People (of Illinois) v. Hagberg, tried in Elgin, Illinois :

"The identification of the substance at trial as cocaine was based solely upon the testimony of a police officer, who conducted a field test on the substance. The reviewing court reversed the conviction based on the insufficiency of the evidence to prove beyond a reasonable doubt that the substance was indeed a controlled substance."

The seven counts of Nance's complaint are based on the allegations above, and they include:

1. Violation of Civil Rights Pursuant to Title 42 U.S.C.1983

Nance claims he has been deprived of constitutionally protected rights under the Fourth, Fifth, and Fourteenth Amendments to the Constitution of the United States including;

• The right to be free from unreasonable searches and seizures;
• The right not to be deprived of liberty without due process of law;
• The right to be free from false arrest; and,
• Equal protection under the laws.
2. False Arrest
3. False Imprisonment
4. Willful and Wanton Conduct,

charging that the City of Galesburg exhibited a reckless disregard for his rights, and that the GPD, acting under color of law, engaged in willful and wanton conduct in making the arrest.

5. Malicious Prosecution

in spite of the lack of evidence in case number 08-CF-452, which was dismissed after a finding of no probable cause

6. Civil Conspiracy
7. Defendants were acting under color of law and as employees of the City of Galesburg: Plaintiff has filed according to the Illinois statute for civil actions against government officials

This impressive document was filed in Peoria on August 12, 2009 in US District Court and thus far the complaint is the only item on the docket. Damisch and Damisch, (damischlaw.com) who represent Nance are noteworthy in their own right. John Damisch, the elder partner, has assisted in the founding of three banks, two of which are now part of Chase Bank. In his law practice, he has won judgments as large as 5.5 Million dollars, and as a teacher he wrote the chapter on eminent domain for the local government for Illinois Continuing Legal Education. The younger partner, Mark, who is representing Nance, has been also been famous as a musician. He has toured the world as a concert pianist and given concerts to raise funds for international non-profit organizations. His 1977 tour was acknowledged by President Jimmy Carter, and local officials. All of the concerts were dedicated to better relations between the United States and citizens in the host countries.

Mark has won numerous awards in the legal realm, including the National Moot Court Competition Best Speaker in 1980 at Northwestern University - where young lawyers test their skills against each other in an open competition.

As of press time, I've not yet spoken with the parties in this case, but I have tried and I am certain the conversation will be interesting. For the Damisch, this is not an ordinary case but an opportunity to further the cause of human rights, which is their passion.

Originally prepared for the 9/24 print edition of The Zephyr
Court documents and related materials will be posted at http://cityofgalesburg.us

David Roknich,
Galesburg, Illinois