Cops and Prosecutors in Southern West Virginia – Part Deux

Since my last post on this topic, much has happened in Pocahontas County, West Virginia.  Yet another deputy of that county, was charged with a felony – actually five (5) felonies.  When I first heard this, I knew it was just a matter of time before the charges were dismissed, since law enforcement officers are apparently above the law in that county – as we all learned when this deputy’s buddy was previously given a sweetheart plea deal in his felony criminal case which I detailed earlier.

Indeed, the Pocahontas Times reported that the charges have now been dismissed.   Apparently the prosecuting attorney (and her assistant) were recused from remaining on the case (which is a convenient thread that runs through just about every case where law enforcement officers are charged criminally).  Actually, they requested to be recused. As I have pointed out previously, why and the heck is there a conflict for a prosecutor when a cop breaks the law?  In my opinion, this is step No. 1 for the cop-gets-off process. So, this prosecutor and her underling were recused.  So the defense makes a motion to dismiss.  Then there is a hearing with no prosecutor.  So a motion to dismiss is heard with just the cop and his defense attorney in the room.  Obviously the result was that the charges were dismissed.  Apparently step No. 2 in the cop-gets-off process is to have no prosecutor show up at the trial.

According to Allegheny Mountain Radio, no prosecutor was at the hearing or assigned to the case due to “miscommunication.”  Show me a case where Joe Blow got his five felonies dismissed due to “miscommunication” between prosecutors.  It would never happen.  But, conveniently, we have a cop in a rural county, where that exact thing just happens to take place.  The stars and the planets align, hell freezes over, and the man walks free and clear.  

The prosecutor seemed surprised and disappointed this happened.  She is quoted at one point in the article:

Prosecuting Attorney Donna Price said Tuesday afternoon that because of that, Smith ordered the assistant prosecuting attorney out of the courtroom before he could explain the state’s position.

Nothing really surprises me about what happens in this particular county.  But this sentence did catch my eye.  It reads that “Prosecuting Attorney Donna Price said Tuesday afternoon that….”  

I was in the Pocahontas County courthouse on Tuesday afternoon.  I desperately needed to speak with the Prosecuting Attorney on behalf of a client.  I had attempted to call her probably twenty times.  I left message after message after message over the course of months.  I never received a return call, and the receptionist at her office would consistently, and rudely, brush me off every time I urged her to have the prosecutor return my call (as if a taxpayer-funded public office employee had the right to be rude to lawyers, or anyone else, calling that office…).  Mind you, I have dealt with many a prosecutor, in many different counties, and never have I had this problem before.  But, in this instance, my client had not only a pending criminal case, but a pending civil case against the county and her office.  I thought maybe that had something to do with it.  

She had two arrest warrants out against the person, and I was there to turn him in and get a bond set – in part because we were there for a marathon session of depositions which would last two days.  The only time I was able to speak with her previously was when I dropped into her office unannounced.  At that time, she agreed that she would agree to a reasonable bond.  Well, when I actually showed up that morning, which was expected, and which was Tuesday July 7, 2009 – the “Tuesday” referred to in the article – her office door was closed.  Her assistant prosecutor was there, and said that she was not in the office that day, that she was out all day because of a death in her family.  

So was she in the office/courthouse on Tuesday July 7, 2009 and avoiding me, or was she out?  Maybe she was out part of the day, or maybe she spoke to the reporter over the phone….  I don’t know for sure, but I really didn’t appreciate being barred access to the prosecutor when this reporter had full access. 

But there was more.

After telling me of his boss’ absence, the assistant prosecutor then said that he had spoken to her about my client, and that she wanted a “six figure bond.”  This was for two misdemeanors mind you.  It seemed obvious to me that this was retaliation for the civil case having been filed.  A six-figure bond for two misdemeanors?  Not only was this a true injustice, but it was an ambush.  Both myself and my client were ambushed by this request for a “six figure bond” when I was previously assured that bond would not be a problem.  Most other prosecutors would have given me a heads-up beforehand.  The goal seemed obviously to put my client in jail as retaliation.  Luckily, I was able to negotiate a slightly lower bond and my client was able to bond out.

But as the Cat in the Hat says, “that was not all, no that was not all.”

I had previously demanded two videos from the prosecutor.  They were demanded by a prior attorney several times, and they were demanded by myself several times, including through a FOIA request, a motion to dismiss due to failure to produce evidence, and a civil lawsuit.  The two videos, showing two arrests of my client, for which he was charged, were never turned over to me or my client.  In fact, the prosecutor wouldn’t even acknowledge the existence of one of the videos, even up until the day of the depositions in the civil case (the Tuesday I was talking about).

Well guess who did have both of the videos….  

That’s right.  The civil defense attorney for the county, and the civil defense attorney for the State Police both had the videos.  So here we have a criminal defendant charged almost two and a half years ago with committing crimes.  Jury trials are scheduled with no videos being produced.  The defendant fails to appear because the videos were not produced and he is afraid of getting railroaded.  He is charged for failure to appear (twice).  They still don’t produce the videos.  They get a FOIA request.  They finally admit to one of the videos, but still don’t produce.  A motion to dismiss due to failure to produce evidence is filed.  They still don’t produce.  A civil lawsuit is filed.  They still don’t produce.  Another seven months pass while the civil case is being litigated.  The prosecutor still doesn’t produce the videos to the defendant, who still has pending criminal charges.

Mind you, the prosecutor never even admitted to the existence of one of the videos to myself or my client, yet the civil defense attorneys were provided digital copies of both videos.  We saw them for the first time during a videotaped deposition.  You guessed it, compliments of the prosecutor, it was another ambush.

When I went back down to the prosecutor’s office, her door was still closed (this was the next morning however), and still apparently  ”out of the office.”  I confronted her assistant prosecutor who was standing in the reception area.  I told him that I didn’t appreciate the suppression of this evidence from me while the same was provided to civil defense attorneys, unbeknownst to me.  I told him I would get to the bottom of the matter, and that if I found out that anything unethical was committed, I would report the same to the state bar.  Well that did it.  He started yelling at me, accusing me of threatening him, and, suddenly, the boss prosecutor was back “in the office,” and opened the door to her office and walked out and began yelling at me as well, telling me that she didn’t have to do a damn thing basically.  Following her lead, PCSD deputy Brad Totten then got in my face and joined in, shouting at me.  All of them were shouting, in part, that they thought that I had received the videos, and that their previous secretary must have mistakenly failed to send me the videos.  

Give me a break.  If that is true, then give me her name and I’ll take her deposition.  Show me the cover letter that should have accompanied the videos.  Show me proof of postage.  Show me any proof.  

Res ipsa loquitur – the thing speaks for itself.

For the record, I would like to know whether Prosecutor Price was “out of the office” at approximately 9:30 a.m. on Tuesday July 7, 2009 – the same day and time that according to Alleghany Mountain Radio, she sent Assistant Prosecuting Attorney J.L. Clifton downstairs to inform her about what was going on in the aforesaid deputy’s prosecutor-less hearing in magistrate court, and also the same day that she was available to the Pocahontas Times reporter who interviewed her regarding the matter.  And was there ever any attempt at sending me the videos?  Maybe a special prosecutor should be appointed to investigate that.  

Additionally, maybe someone should investigate a prosecutor’s office who uses the threat of continued criminal prosecution as leverage in civil litigation, which happened in this case.  It wouldn’t be the first time Pocahontas County has had a prosecutor investigated.

There’s no real conclusion to the story, just the fact that I’m now all ‘riled up and even more willing to speak out against injustice occurring daily in places like Pocahontas County, West Virginia.  On a lighter note, I was really impressed with Magistrate Kathy Beverage of that county.  I wish more magistrates had her inherent sense of justice and courage. 

Hopefully I’ll get to Part III sometime soon.

 - John H. Bryan, West Virginia Attorney.

NC Case Illustrates Abuses of Inmates

Probably the most vulnerable among us are those who are incarcerated.  I’m all for law and order, as well as punishment, but very few of those incarcerated actually killed somebody or are otherwise going to spend the rest of their lives there.  Many of them haven’t even been convicted of anything yet, they just don’t have the ability to bond out prior to their trial.  Many times these people are physically abused by correctional officers who have the ability to run roughshod over the population.  And people don’t care because they view them as criminals.  

For instance, there was a North Carolina case that just popped up in the news, which captured the beating of an inmate on video – leading to a civil lawsuit.  But if it were not videotaped, nobody would believe it.

In West Virginia, we have some of the worst jails in the country.  I’m not talking about the prisons, but the jails – places where people go who are awaiting trial, or who were sentenced to a short sentence of incarceration.  It seems like every other day there is a correctional officer being fired for sexually assaulting inmates, or dealing drugs with inmates.  And these are just the one’s who get caught.  I’ve heard countless stories from different clients of the abuse perpetrated by guards.  And most of them are almost identical, despite the fact that these people had never met each other.

Don’t be surprised if the Department of Justice announces an investigation….

 - John H. Bryan, West Virginia Attorney.

No pun intended….

One of the interesting things about having a blog is that you get to see exactly how many people visit, as well as what brought them there, including search engine searches.  Sometimes I look at these statistics, sometimes I don’t.  I just happened to look this morning, and apparently one person was brought here this morning by searching “West Virginia’s most notorious criminal,” and another was brought by searching “greatest West Virginia criminal defense attorneys.”  I’ll just let that speak for itself.

 - John H. Bryan, West Virginia Attorney.

Interesting Appeal Filed to the West Virginia Supreme Court of Appeals

About a month and a half ago, I mentioned that I was working on a petition for appeal that contained a factual scenario extremely similar to the Arizona v. Gant holding.  Well, it was filed early this month, and now my client has authorized me to post a copy of the filed petition.  I think it contains some interesting legal issues which have yet to be examined in West Virginia, one of which will be the use of Arizona v. Gant as it applies to “inventory” searches in West Virginia.

Additionally, this is an extremely odd case (factually).  And its one of those where the police and the prosecutor really went after the guy and he ended up getting the proverbial “book” thrown at him.  It illustrates the danger of jury trials, and the power of the prosecutor.  If they want you punished, there are enough laws out there that they can bend the facts around, that they can turn you into a felon pretty quickly – not to mention a registered sex offender.  And then they can charge you with multiple counts, basically restricted only by their whim.  The only way to stop them is to appeal.

Also, a H/T to Tom Rist for assisting with the case.

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The West Virginia Criminal Law Blog included on list of Favorite Law Blogs

My thanks to Glen Graham of the Oklahoma Criminal Defense Blog for including the West Virginia Criminal Law Blog on his list of favorite law-related blogs a little while back.  He includes us on the list of “The Top Trial Warriors and Top Civil Lawyers, Trial Consultants, Lawyers and Non-Lawyers, and the Best Criminal Defense Lawyers in America.”

He also includes a few of my favorites:

Mark Bennett – Houston Criminal Defense Attorney Blog

Texas Grit’s for Breakfast Blog

Jamie Spencer’s Austin Criminal Defense Blog

Brian Tannebaum – Miami Florida Criminal Defense Blog

Scott Greenfield – New York Criminal Defense Attorney

And there are others, but you will need to check out his post to see his full-list.

 - John H. Bryan, West Virginia Attorney.

Are civil defense attorneys in WV amicably-challenged?

Of course, as a civil plaintiff’s attorney/ criminal defense attorney, I have encountered some civil defense attorneys out there who were nice people.  But it seems that more and more I encounter those who are, to be kind, “amicably-challenged.”  I’m not talking about the small-town attorneys across West Virginia who somehow get along with each other perfectly well, I’m talking about the “big city” (Charleston, WV) attorneys who think they are “God’s Gift” to the practice of law.  It’s like they don’t realize that the real big-city attorneys in D.C. and elsewhere consider them the small-town yahoo attorneys.

When I was working for the DOJ in D.C., the running joke was about attorneys like this who practice in “state courts.”  They used to laughingly read their briefs and memoranda, commenting on the poor quality.  Of course, I don’t subscribe to that type of arrogance. And I understand that, now being in the real world of the “state courts,” results – and not style or elegance – are the only thing that matter.  And sometimes a somewhat sloppy and to-the-point style can be the most effective.

I have heard it said from some of the prominent West Virginia defense attorneys who represent government agencies or officials, that other similarly-situated defense attorneys in other states have commented to them that they represent public agencies and officials, and therefore they represent the people, and therefore, they should be as transparent as possible.  This was in regards to whether or not to voluntarily hand-over sought discovery materials in civil actions against state or local government.  But the response by the West Virginia defense attorneys was, “hell no, we’re not handing over anything that we don’t have to.”  And apparently – at least according to them – they haven’t.  Not in any case.

For instance, in a prior post, I detailed one such defense attorney’s tactics of withholding important information, which landed his client sanctions in the form of attorney’s fees.  This same attorney, just yesterday, purposely noticed a deposition of my client in a county/location, which we had previously-agreed would not be the county/location of the deposition.  My last communication to him was something to the effect of, “okay, we can take the deposition on such and such dates, but due to my schedule and my client’s travel requirements, it has to be either in location A, or B, but absolutely not C.”  He said, “okay.”  The next day, I get a notice of deposition, for location C.

Why do they engage in this behavior?  Is not the public entitled to anything and everything related to government?  Certainly there is no national security interest to be protected in cases such as these.  What are they hiding?  Alan Dershowitz said that “the defendant wants to hide the truth because he’s generally guilty.  The defense attorney’s job is to make sure the jury does not arrive at that truth.”  Of course, he was talking about criminal defense attorneys, but it still rings true.  Is it proper for a West Virginia law enforcement officer or agency to, after being sued for allegedly improper conduct, hide the facts of the alleged conduct?  Where in that scenario is the public being represented or protected?  

And doesn’t the public deserve representation that is open and amicable?  Can they not just call up their opponent and say, “hey, I would like to have the deposition in location C.  Let’s work it out.”  Or, why not say, “hey, is this date and time good for you for a hearing on such and such?”  Almost every other non-big-shot lawyer in West Virginia does this.  And most get along fine, fight it out, and end the day as friends.  But these big-shots make a game out of scheduling hearings for dates that they know their opponents are unavailable, and then they oppose any motion to continue.

For instance, several years ago, my son was a new-born, and had to go back to the hospital due to a high-fever.  Of course, I wanted to be with my wife and son in the hospital.  One of these jerks set a hearing, knowing I would be in the hospital.  When I found out, of course, I was enraged.  I called him and he refused to voluntarily move the hearing.  My office filed a motion on my behalf to continue.  He opposed it.  Of course, the judge granted the motion and continued the hearing.  Classy lawyer huh? 

And this behavior isn’t limited to those civil defense attorneys representing government agencies.  They are encountered frequently in personal injury litigation.  I guess you have to be of that mindset when your goal is to stop an injured victim from getting the compensation they deserve.  Part of their game is to be a real jerk to the client during their deposition.  They try to upset them, to rile them up, to make them so upset at having filed a claim against their client – the insurance company, they they regret it and lose the will to go on.  Is that the way to win?  I don’t believe so.

So how should mere mortals such as myself deal with these big-shots?  Maybe the best strategy is to do as Sun Tzu advised,and  ”pretend inferiority and encourage his arrogance.”

I should also insert a caveat here that, the real big-shot attorneys, the one’s who’s names can be found in large letters on the outside of fairly large – or actually large – buildings, do not fit this mold in my experience.  They have been among the nicest, and most respectful, attorneys I have encountered – both socially and as opponents.  True classy lawyers.  And I think it proves my point that their names ended up on those buildings – not through behavior as is discussed in this post – but rather through respectful behavior and intelligent lawyering.  Kind of like speaking softly and carrying a big stick.

And less I anger some personal injury defense attorneys out there who are truly good people and quality lawyers, I also hereby insert the caveat that there are a few out there.  I have had as opponents those who sympathize for my clients and who reasonably attempt to get their insurance company clients to offer reasonable compensation for injuries if it is deserved.  I have encountered those who are respectful and who are basically friendly.  But that is, at least in my opinion, the exception for the big-firm Charleston attorneys who venture out into the wilds of West Virginia dealing with us small-town yahoo local yokels.

 - John H. Bryan, West Virginia Attorney, and all-around nice guy.

WV Supreme Court Acquits Woman Convicted of Murder

In a 4-1 decision, authored by Justice Menis Ketchum – a Justice with criminal defense experience – which was filed yesterday, the West Virginia Supreme Court of Appeals actually acquitted a woman who had been convicted of murder in Cabell County, West Virginia.

A jury convicted Tanya D. Harden of first-degree murder in 2007, ignoring her argument that she acted in self-defense. She said Danuel Harden Jr., her husband of 11 years, told her that “nobody was going to walk out of the house that night,” including their two children.  She apparently shot her husband with a shotgun while he was sleeping on the couch.  

This was basically a “battered woman syndrome” self-defense case. 

The justices’ decision acquitted Harden of murder charges, and ordered her released from prison immediately. She had been serving a life sentence with a recommendation of mercy.

Syllabus Point 3 of the Opinion held that: 

Where a defendant has asserted a plea of self-defense, evidence showing 

that the decedent had previously abused or threatened the life of the defendant is relevant 

evidence of the defendant’s state of mind at the time deadly force was used.  In determining 

whether the circumstances formed a reasonable basis for the defendant to believe that he or 

she was at imminent risk of serious bodily injury or death at the hands of the decedent, the 

inquiry is two-fold. First, the defendant’s belief must be subjectively reasonable, which is 

to say that the defendant actually believed, based upon all the circumstances perceived by 

him or her at the time deadly force was used, that such force was necessary to prevent death 

or serious bodily injury. Second, the defendant’s belief must be objectively reasonable when 

considering all of the circumstances surrounding the defendant’s use of deadly force, which 

is to say that another person, similarly situated, could have reasonably formed the same 

belief. Our holding in Syllabus Point 6 of State v. McMillion, 104 W.Va. 1, 138 S.E. 732 

(1927), is expressly overruled. 

In Syllabus Point 4 of the Opinion, the Court held that:

Where it is determined that the defendant’s actions were not reasonably 

made in self-defense, evidence that the decedent had abused or threatened the life of the 

defendant is nonetheless relevant and may negate or tend to negate a necessary element of 

the offense(s) charged, such as malice or intent. 

In Syllabus Point 5 of the Opinion, the Court held that:    

An occupant who is, without provocation, attacked in his or her home, 

dwelling or place of temporary abode, by a co-occupant who also has a lawful right to be 

upon the premises, may invoke the law of self-defense and in such circumstances use deadly 

force, without retreating, where the occupant reasonably believes, and does believe, that he 

or she is at imminent risk of death or serious bodily injury.  In determining whether the 

circumstances formed a reasonable basis for the occupant to believe that he or she was at 

imminent risk of death or serious bodily injury at the hands of the co-occupant, the inquiry 

is two-fold. First, the occupant’s belief must be subjectively reasonable, which is to say that 

the occupant actually believed, based upon all the circumstances perceived by him or her at 

the time deadly force was used, that such force was necessary to prevent death or serious 

bodily injury. Second, the occupant’s belief must be objectively reasonable when 

considering all of the circumstances surrounding the occupant’s use of deadly force, which 

is to say that another person, similarly situated, could have reasonably formed the same  

belief.  Our decision in Syllabus Point 2, State v. Crawford, 66 W.Va. 114, 66 S.E. 110 

(1909), is expressly overruled. 

You know, sometimes prosecutors should come to the conclusion that the guy deserved it.  They should have given this woman a break.  She was protecting her children.  The police wouldn’t have stopped him from killing her, or the children.  That’s why we have guns for self defense.  It’s each of ours individuals responsibility to protect ourselves and our children.  The prosecutors were trying to victimize these children by turning them into orphans.  

As the Appellant/Defendant’s brief noted (caution: there are some gruesome photographs):

From Tanya Harden’s arrest to her sentencing, the State has never disputed an essential fact – that the decedent threatened to kill his wife and children and used his fists and shotgun to brutally beat his wife just before he died.  The injuries suffered by Tanya Harden, including facial fractures, were preserved on photographs taken the day of her arrest and made part of the record in this case, and were attested to by the State’s own witnesses.

This is our job as defense attorneys: to protect those of the Lord’s children who have fallen short of perfection from the wrath of those who believe they have attained it.  And by those, I am talking about prosecutors.  And Ms. Harding may have fallen short of perfection, but I can’t say that I wouldn’t have done the same thing given the circumstances.

 

- John H. Bryan, West Virginia Attorney

Shuttle returning to Florida

Here is a picture my father took of the shuttle returning to Cape Canaveral atop the 747.  It apparently was flying pretty low.  This location is still about 50 miles south of Cape Canaveral.

 

History applied to lawyering – Part I – George Rogers Clark

This is the first part in a series which I have always wanted to write.  I am an amateur, but ardent, student of American history – especially U.S. military history.  Through the hindsight of the history books, you can really see the leadership qualities that people had, as well as the resulting disparities of outcomes of the situations in which those individuals were involved.  Some were great, and some were not.  Some accomplished great feats, and some facilitated great disasters.

Through studying some of these characters and events, I believe the same lessons and principles can be applied to modern day scenarios, such as the practice of law – especially civil litigation and criminal defense.  For the same reason that Wall Streeters keep a copy of Sun Tsu’s The Art of War in their briefcases, so do I keep the lessons of military history swirling through my head as I make tactical decisions that affect the outcomes of my client’s lives.

The first such character that I would like to discuss is one of my favorites – George Rogers Clark.  He was born on November 17, 1752 in Albemarle County, Virginia – which is now the area around Charlottesville, Virginia (i.e., UVA).  But then, it was the frontier.  It was also home to Thomas Jefferson and Monticello.  The two were family friends, though Jefferson was more like an Uncle because he was somewhat older than George.

Certainly, George Clark came from a fairly wealthy family.  They were Virginia plantation-type farmers.  Though his family lived for a while on the frontier, they eventually moved back to eastern Virginia, and lived among the slightly-aristocratic crowd – though by all accounts they were extremely down-to-earth and good people.  Through his life, George used his family connections to facilitate his goals.  This is very much akin to networking as a lawyer.  A lawyer needs to develop connections in places, and with people, that can be used in the pursuit of clients’ goals.  During his lifetime, George used his connections with Patrick Henry, who was to become Governor of Virginia after the Declaration of Independence, and Thomas Jefferson, who was to become President of the United States, to gather the supplies and authorization that were absolutely necessary in acheiving his goals.

And that is what the story of George Rogers Clark is all about: the transformation from thought to deed to result.  As George was growing up, he left behind the safety and civility of the eastern Virginia crowd, and began roaming the frontiers, mostly around the Ohio river and present day Kentucky.  At that time the wilderness was swarming with danger, not the least of which were Indians – mainly the Shawnee, Delaware and Wyandots (a band of Hurons from the Great Lakes area who relocated and renamed themselves).

But also at that time, the American Revolution had broken out.  The British, who controlled the western wilderness areas and were headquartered out of Detroit, paid Indians for scalps taken from the American settlers in the western Virginia and Kentucky frontier.  And scalps were taken, with specific amounts paid for men, women, infants, elderly, etc.  British General Henry Hamilton, who commanded at Detroit, was known as the “scalp buyer,” and George Clark developed an intense desire to defeat this man.  Although he was just one man, George developed considerable influence among his fellow frontiersmen – including Daniel Boone, and he was the type of guy that had vision – a dreamer.  

While sitting around campfires in the rugged Kentucky wilderness, George Clark cooked up a scheme in his head to conquer, not only General Henry Hamilton, but all of the western territory from the British.  Of course, he couldn’t tell anyone about this scheme, because they would have laughed at him.  By all outward appearances, it certainly was a laughable scheme.  At that time – he fledgling United States was struggling to stay afloat in the war against the British.  The outlook was bleak.  The British were strong.  The U.S. had suffered defeat after defeat after defeat.  Especially in the northwestern territory, the British were in control.  They had numerous forts, both along the Mississippi River, throughout present-day Indiana, and at Detroit.  They had cannons.  They had trained professional British soldiers – at that time the best in the world.  They also had the support of the Indians.  The U.S. was expending all of it’s resources in the struggle for it’s life in the East.  And although George was previously a Captain in the Virginia Militia, he wasn’t exactly a General in the Continental Army, which it seemingly would take to get the authority, supplies, manpower, and ability to achieve such an ambitious task.

But George was a dreamer.  He believed that where there is a will, there is a way.  If given the resources and the authorization, he truly believed that he could conquer the north western territory, along with General Hamilton – the scalp buyer.  And the result would be not only much needed victory for the U.S., but a likely end to the massacres across the frontier that were being financed by the British.

He never did tell anyone about his grand plan, at least not until he traveled back to eastern Virginia.  There he spoke with Thomas Jefferson, who was not yet President obviously, but he was extremely influential.  Also influential was Patrick Henry, who by that time was indeed Governor of Virginia and living in the Governor’s Palace in Williamsburg – which then was the capitol of Virginia.  The three of them discussed this idea.  And they were on board.  They still kept it a secret.  They helped George get authorization to raise a small army for the “defense of the Kentucky frontier”, which by that time was developing into a loose sort of frontier government, but which had no military defense for itself.  He was commissioned a lieutenant colonel in the Virginia militia by Patrick Henry.  Henry also assisted George in obtaining a levy of funds and supplies from the Virginia legislature for this overt purpose.  But George also had secret orders to lead an invasion, on behalf of the State of Virginia, on the British posts in the western territory.  It was a secret, and in those times there were no leaks to the press under such circumstances.

When George arrived at Fort Pitt – present day Pittsburgh – to recruit his troops, he found difficulty finding volunteers to go defend the Kentuckians, when they themselves were Virginians and could care less what happens in Kentucky.  They had their own frontier massacres to worry about.  Of course George could not tell them the real purpose of the mission.  So as it ended up, he was only able to gather up a rag tag bunch of ruffians – the sort who were all fleeing from somewhere, and who would agree to do almost anything either for money, or for the chance to kill Indians – many of whom had been the victims of Indian massacres.  They were described as the most felonious bunch of criminals and deserters from back east that you could ever imagine.  This extremely small army numbered 175 men, and probably would have been laughable compared to armies back east.

Nevertheless, George set out with his little army, stopping just above what was then the falls of the Ohio river – around present day Clarksville, Indiana.  They stopped on a little island.  Here George trained this rag tag group of ruffians.  He beat discipline into them, sometimes by challenging problem soldiers to personal fights, after which he personally beat them into submission, thus gaining the respect of his men.  During this time, the true mission of the little army remained a secret, until one day George called a meeting, and masterfully laid on the real plan.

He began by inciting a fire within the men to destroy the British – especially the scalp buyer Henry Hamilton.  Most of these men had been touched by some sort of Indian massacre.  Some had had their entire families slain.  Then, he told them the real purpose of their army.  Tomorrow, he told them, we are leaving by boat, floating through the falls of the Ohio and going downstream a ways.  Then we will march inland and silently and secretly march all the way to the Mississippi River and attempt to take the first British post – Kaskaskia by surprise.  Strict orders were given to the men to remain from in any way harming the local population – who were actually French.

And indeed, they did this, just as George planned.  They traveled all the way there unnoticed, and during the night, forded the Mississippi, and took the town and fort of Kaskaskia by surprise – while they were having a dance.  Not a shot was fired and no one was injured.  The British commander was caught in his bed with his wife and was taken into custody.  George had him marched via escorts all the way back to Williamsburg, Virginia, on the way stopping at his parent’s home so that his family, including his younger brother, William, could see this captured British (actually French) commander, where he was eventually to be imprisoned by the State of Virginia.

The next day he captured the British post nearby named Cahokia.  Then he sent a detachment of men to capture and hold the British Fort of Vincennes, in present day central Indiana.  Before anyone knew it, George Clark had conquered all of present day Ohio, Indiana and Illinois from the British – with the exception of Detroit, and had done it all without firing a shot or losing a single man.  And he captured all of this territory on behalf of the State of Virginia, who then in turn ceded the land to the U.S. after the war.

When news of this coup trickled back east, it was welcome news.  A long and difficult year – 1776 – had just passed and good news was hard to come by.  At about this time, news of George’s victories arrived on board a British prison ship – via a new prisoner – floating off the coast of New York.  On that ship was one of George’s younger brothers – I believe his name was Edward Clark.  He was a soldier in the Continental Army and was captured one foggy morning when he and his soldiers lost their way and happened directly into a larger force of British.  He had been on the prison ship, in absolutely awful conditions, with no fresh air or fresh food, for the better part of a year by this time.  A new arrival brought word of this feat by his brother, and it gave him a little more will to make it out of the ship alive.  

Edward eventually would make it out of the prison ship alive, but would die from his harsh treatment shortly thereafter.  He did make it back home to his parent’s Virginia home before dying.  And he did get to see George again, along with the rest of his brothers before he died.  During his stay on the prison ship, he also got word of an amazing feat by one of his other older brothers – Jonathan Clark, who now became known as the hero of Paulus Hook, after he stormed the British fort of Paulus Hook, just across the Hudson River from New York City, while pretending to be British troops returning to the fort after pillaging the New Jersey countryside for food.

Anyways, back to George.  Obviously, when General Henry Hamilton found out what George had done, he was furious.  He couldn’t believe it.  As soon as he could, he gathered his army and marched it to the nearest post that George had captured – Vincennes, which was somewhat isolated from the post that George had taken up residence in – Kaskaskia.  The British held the post into the winter without George ever having found out that it had been recaptured.  Meanwhile, George had become friends with the Spanish commander across the river (present day Missouri was at that time under the Spanish flag) and had actually fallen in love with his younger sister.  This was a love destined to end in tragedy.  For some unknown reason, she ended up sailing back to Spain when the Spanish withdrew from the region, though they were engaged to be married.  The details are lost to history, but it is speculated that possibly a rival suitor falsely informed her of George’s death while he was away fighting the Shawnee Indians.  George would tragically never show any interest in another woman, and most likely loved her until his death – at least partially due to a broken heart.

George had a practice of treating everyone as equals and with respect.  Through the hindsight of history, it can be proven, I believe, that this trait was a key link in his success.  His men would do anything for him, as would his friends.  One of his friends was a Spanish merchant based out of St. Louis.  At that time, Spain was not at war with the British.  Thus, General Hamilton felt that he had to allow a Spanish trader who had been visiting Vincennes at the time he re-conquered it, to remove back to his home at St. Louis.  Hamilton made the man give his word that he would go straight home to St. Louis, and not to Kaskaskia to warn Clark of the re-conquering of Vincennes.  The man held true to both his word, and his friendship to George.  He traveled directly to St. Louis, and then turned right around and traveled to Kaskaskia – thus not actually breaking his promise to Hamilton, but still bringing the dire and important news to Clark that a British army was nearby, having already captures Vincennes.

The news couldn’t have come at a worse time.  Or could it?  It was the middle of the harshest winter anyone could remember, and severe snow and rain had caused flooding worse than anyone could remember.  No army – nor any person – could travel in such weather.  Probably not until Spring.  With the characteristic fortitude, courage, and optimism that had brought George to where he was, he gathered his men for a meeting.  He was marching right that moment for Vincennes, to retake the post and to defeat the western British Army.  Every man volunteered.  It was basically a suicide mission, assuming they even could get to Vincennes.  But it at least gave them the chance of surprising the British.  

George left a few of his men behind to hold the posts at Kaskaskia and Cahokia, and set out for Vincennes.  It was freezing cold and the rivers were cresting due to severe flooding.  He knew that his only chance at defeating this professional and highly equipped army was to catch them by surprise.  If he waited until Spring, they would be marching his way, and he would almost surely be defeated and either killed or captured by the British, thus undoing everything he had accomplished thus-far.

It was an unbelievably difficult journey.  But his men were dedicated to him, and despite their rough exterior, they were determined patriots, and they all had a true desire to defeat General Hamilton.  Where there is a will there is a way.  And with George’s leadership and will, and their dedication to him, they made it.  Obstacle after obstacle, they survived and arrived, in the middle of torrential flooding.  Normal men likely would have died of exposure during this trip.  But, with a great leader, the men pressed on.  This march aged George and his men so greatly, that none of them would ever fully recover from the exposure and fatigue they incurred in making the march.  To their advantage, the British never would have expected them to do this, but they did.  They caught the fort by surprise, and they started firing at the fort with small arms.  They had sent a boat up the Ohio and then up the Wabash River to Vincennes, commanded by George’s nephew, with extra gunpowder and cannons, but the boat had not yet arrived.  So they made due with what they had.  

By appearing in different places through the town, which lied just outside the fort, they made themselves appear to the British as a much larger force.  Being frotiersmen, they were equipped with Kentucky Rifles rather than the smooth bore British muskets, which meant that their rifles were much more accurate than British muskets.  So every time a British soldier poked his head through a gunport or above the fort’s walls, they would shoot his hat off.  It appeared that Clark, who by this time had almost reached mythical proporations throughout the frontier – especially among the Indians, they called him “Long Knife” – had defied nature and defied reason and shown up with a large force of the most vicious and angry looking men anyone had ever seen.  They were still the felonious bunch who hated Indians and hated the British.  And it appeared to everyone inside the fort, that if given the opportunity, they would murder everyone inside in the most brutal manner.  But it was just a rouse.  They were actually very disciplined and dedicated to George who had given them strict instructions not to hurt anyone who was unarmed.

But there were a couple of people who were harmed, and this eventually caused the British to surrender the fort.  Clark’s men caught a band of Indians returning the fort with fresh scalps from a raiding mission on the frontier.  After being captured, they were led near the fort.  Clark allowed one of his men, who’s family had been slaughtered by Indians, kill each of the Indians one-by-one with a tomahawk, within view of everyone within the fort.  Though the fort quickly surrendered after this, this incident always troubled George, always feeling that he had been wrong in allowing this to happen.

Plans were made for General Hamilton to surrender the fort the next morning, which was done.  As Hamilton handed his sword to George, he said, “where is your army.”  George replied, “your looking at it,” pointing to the hundred or so men in view, who were watching.  At that moment, General Hamilton realized that he had been duped into thinking Clark’s force was much larger than it really was.  But it was too late.  

True to his word, George kept his men from harming anyone who surrendered, and they all became prisoners of war.  Hamilton himself was again sent back to Williamsburg for imprisonment by the State of Virginia, again stopping to see George’s family and his little brother William, who by this time idolized his older brother (who was 20 years older than he).

George continued to hold these posts and this territory until the end of the war.  But he never actually captured Detroit – another thing that bothered him for the rest of his life.  He just didn’t have the financing to get the supplies – nor enough men to actually lay siege to the large fort of Detroit.  But what he did accomplish was still nothing short of amazing.  He by this time was named a General in the Virginia Militia – and was thereafter known as General Clark.

Unfortunately, as great as George’s ascendancy to greatness was, equally so was the remainder of his life a tragic story.  He would live out the rest of his life in the community which he founded – Clarksburg, Kentucky and Clarksville, Indiana (across from each other on the Ohio River).  The powers-that-be in Washington and in Williamsburg in the end ruined him.  In order to maintain all of these posts through the war, he had to purchase supplies from the traders and from the Spanish on credit – with his personal guarantee.  He documented all such notes he signed.  He then had them transported to Williamsburg to be paid out to the note holders after the war.  Someone in Williamsburg lost the chest containing the notes, and the government thereafter claimed that no notes were delivered to them.  The remainder of George’s life was spent in financial ruin as a result.  Perhaps the most tragic effect of this betrayal by the government was the toll it took on George’s mental health.  He became a severe alcoholic, and pretty much lived that way until his death.  

But until George’s death, he was still a hero to people on the frontier – even as it moved far beyond Kentucky, and then across the Mississippi River.  He would eventually be awarded a metal and sword by the U.S. Government and recognition for his deeds – though by this time he was so bitter that he almost didn’t accept the honor.  To his men, George Rogers Clark was a hero, and their savior.  He took them from a gaggle of criminals, and turned them into hero’s themselves.  They were forever loyal and dedicated to George – and he to them.  But most of all, George was a hero to his youngest brother, who was the person who took care of him through all of these difficulties, and who loved him unconditionally.  George was his role-model.  His name was William Clark, of the Lewis and Clark expedition.  Throughout Lewis and Clark’s expedition, they encountered Indians who looked at the red-headed William Clark and instantly knew he was related to the great Long Knife, whom they respected greatly.  At George’s death, Indians traveled from all-over to pay their respects.  Some had battled with him as enemies, some had been saved by him.  All were sad to see him go.

Maybe none of this has any bearing on modern day life, but I don’t think so.  This period in history is full of people and events such as these, and the outcomes always seem to turn almost entirely on the traits, principles and tactics of the leader(s) involved – in this case George Rogers Clark.  George could have just as easily been content to remain in Kentucky and seek political and financial advancement there.  Instead, he was a dreamer, and in his mind developed this grand scheme.  And through his will, his determination, his fortitude, he turned his dream into reality, not only conquering Ohio, Indiana and Illinois in the name of Virginia, but also inspiring others, such as his younger brother, into also doing great things.

I believe that in studying his life, and the decisions that he made, we will find that there are inherent lessons to be learned that can still be used today, especially by lawyers.  Litigation is similar to warfare, and both turn greatly on tactics.  Of course, you can’t always control the size of your army, or the size of your war chest – i.e., the facts of your case and your financial ability to fully prepare your case – but you can control the decisions that you make, your strategy.

George used his personal connections to his greatest advantage.  He maintained secrecy in every operation he undertook.  He had the gumption to take on the British army in the first place.  He won over the hearts of the French villagers in each post he conquered.  He won the respect of his men, and indeed everyone, by being an honest man.  He exploited his enemies weaknesses – using their pride and arrogance against them.  He maximized his strengths – turning every one of his men into a seeming platoon of crazed, invincible killers, inciting fear into the enemy and weakening their resolve.  This is by no means a comprehensive list of the things to be learned by George’s story, but these are some.

I sometimes feel similar to George Clark when I take on the government, or a large company or law firm.  They are my General Hamilton.  They are the British Army.  I know that I can’t outspend them.  I may not be able to raise a great army.  But, I can utilize the lessons of history – time tested principles that can give me an advantage, that if played just right, might just result in a coup without having to lose a man or even fire a shot.  I may show up when least expected and appear to be a much larger force than I really am.  I may inwardly be acting on separate orders from those known by my enemies or other outsiders.  I may exploit the arrogance and ignorance of my enemy.  

Another reason that I believe George Rogers Clark was successful was that he was on the right side of history – no pun intended.  He and his men were fighting on the offensive on the principle that the best defense is a good offense.  They were fighting to put an end to the Indian massacres of the families and neighbors.  They were also fighting for their country’s independence against an empire who would pay for the scalps of innocent babies to be viciously cut-off with knives and popped off the skull.  They were right, the British was wrong.  Moral authority – and truth – have a strong advantage, at least in my opinion.  Similarly, I like to be on the right side of a case.  Right almost always equals might, and the truth is powerful.  It’s hard to passionately try a case when you know that your side is in the wrong.

The point is, that I can never defeat such enemies, if I can’t convince myself that it’s possible – if I wasn’t a dreamer.  I believe that to be good lawyers – we have to be thinkers, dreamers.  Because if it doesn’t show up in your head first, it will never show up in reality.  Take your cause, ideally a righteous one – and run with it.  As James Allen explained in 1902, “as a man thinketh in his heart, so is he.”  And as George Santayana said at about the same time, “those who cannot remember the past are destined to repeat it.”  So which would you rather be?  George or General Hamilton?  You can make that choice.  Just make sure you make it before you act, rather than in hindsight.

 - John H. Bryan, West Virginia Attorney.

Double Dipping Mall Officers

There was an article in the Charleston Gazette this morning about the ongoing criminal trial of an officer accused of “double dipping” – working as a mall security guard while still on the clock as a police officer.  I probably wouldn’t have commented on this, but I happened to glance at the article and noticed that the defense attorney was one of the two defense attorneys who participated in the police liability CLE in Charleston a few months ago.  He is a civil defense attorney from a large Charleston firm who primarily defends police officers/departments in civil lawsuits.  It makes me wonder.  Is the City (Charleston Police Department) or it’s insurance carrier paying for his criminal defense?  Or did this officer just respect this particular attorney’s skills through past experience or by reference and hire him personally as his criminal defense attorney?  It might be a good FOIA request issue for the Gazette to take on.  If the City is providing the defense, what is the reason?  How much is it costing taxpayers?  And should an officer be provided with a prominent and expensive attorney when charged with a financial crime?  I think these are all good questions if indeed the City is paying the bill.

This also reminds me: I had a former police chief, who subsequently became a federal corrections officer, testify at a murder trial for which he was the investigating officer.  At the time he traveled to the trial location, he was being paid by the federal government.  Additionally, the City took it upon themselves to generously and liberally pay the man for his hourly time during his trip and during his testimony.  Of course this was never disclosed to the defense.  I later found out about it from a letter to the editor in that city’s local paper.  Unfortunately, the Supreme Court didn’t really care about the nondisclosure issue.  He was given the opportunity to return the money to the City, which I believe he did.  He was not prosecuted.

 - John H. Bryan, West Virginia Attorney.

Arizona v. Gant

A great opinion recently came down from the US Supreme Court.  The case is Arizona v. Gant.  What law enforcement officers in West Virginia, and elsewhere love to do is this: they pull someone over for a traffic violation, or even an investigatory stop, and they arrest them for a traffic charge, or for some bogus “obstruction” type charge (i.e., he or she failed to put their hands on the steering wheel despite being ordered to do so).  Basically these arrests are an outright lie and are merely meant to allow the officer to search the vehicle.  And they do.  All the time.  If they don’t find anything incriminating, maybe they let the person go.  But if they do, they take them to jail and collect the evidence.

Well now, according to the US Supreme Court, this is unreasonable and therefore unconstitutional.  The original rationale for a search incident to a lawful arrest is officer safety.  The Court reiterated that and confined this type of search to only that concern.  It is now clear that such searches are not reasonable if the suspect is already handcuffed or otherwise detained in the patrol car.  The Court held that “[p]olice may search a vehicle incident to a recent occupant’s arrest only if the arrestee is within reaching distance of the passenger compartment at the time of the search or if it is reasonable to believe that the vehicle contains evidence of the offense of arrest.  When these justifications are absent, a search of the arrestee’s vehicle will be unreasonable unless police obtain a warrant or show that another exception to the warrant requirement applies.”

For the past 28 years, police academies across the country have basically taught that it was proper police procedure to search the vehicle at every arrest of a recent automobile occupant, regardless of whether there was any concern of officer safety.  Now we will see how law enforcement agencies across the country can re-train their officers.

This could also affect a great number of pending cases.  For instance, I have one appeal I am working on right now where this exact scenario occurred, and the conviction almost surely would not have occurred without the evidence seized during the “traffic stop arrest.”  Maybe I will get the first West Virginia case based on Arizona v. Gant to the West Virginia Supreme Court of Appeals….

 - John H. Bryan, West Virginia Attorney.

Personnel File Discovery Issue Litigated – another helpful plaintiff’s opinion

There was in interesting three part series in the Charleston Gazette’s “Watchdog blog,” “Sustained Outrage” by Andrew Clevenger, focusing on a civil lawsuit against the West Virginia State Police on behalf of Charleston attorney Roger Wolfe – a case I posted on awhile back.

Part 1 deals with a FOIA issue that popped up in that case.  Law enforcement agencies (or rather their defense counsel) do not want to hand over the contents of internal investigations of law enforcement officers, citing concerns over sustaining the integrity of the internal investigation process.

Wolfe’s attorneys made a discovery request for those documents, and the WVSP objected claiming that under a Freedom of Information Act Request (FOIA), those documents would be exempt from disclosure.  However, Cleavinger quickly points out that:

Except…

A state Supreme Court ruling in a 2000 case, Maclay v. Jones, SPECIFICALLY addresses theVERY ISSUE of police records and civil litigation. Here’s what the syllabus point says:

The provisions of this state’s Freedom of Information Act, West Virginia Code §§ 29B–1 to -7 (1998), which address confidentiality as to the public generally, were not intended to shield law enforcement investigatory materials from a legitimate discovery request when such information is otherwise subject to discovery in the course of civil proceedings.

But Andrew, that’s a STATE case. The rules are different in FEDERAL court, right?

Wrong.

U.S. District Judge Charles H. Haden II, in a 2003 ruling in the case Floren v. Whittington, reached the same conclusion. He even cited the Supreme Court’s Maclay opinion.

Cleavinger then hammers the last nail in the coffin, pointing out that:

Virginia Lanham should remember this ruling, as she was one of the two attorneys fromShuman, McCuskey & Slicer who represented some of the defendants in the Floren case. (So should Michael Mullins, who represents Trooper Green in the Wolfe suit; he defended former Dunbar Police Chief Earl Whittington in Floren.)

This case is pending in federal court.  The presiding judge issued a ruling in an eleven page opinion  - by the way this is another helpful opinion for any plaintiff’s attorneys litigating this issue – calling the WVSP’s objection to the discovery request “unpersuasive” and “unconvincing” and even ordered the WVSP to pay Wolfe attorney’s fees for their improper objection and refusal to produce the personnel filed, etc.

Let’s see if the defense counsel try to use these objections in state court….

 - John H. Bryan, West Virginia Attorney.

Venue Issue Decided in Flanary Case

A venue issue had popped up in the Flanary case when counsel for Pocahontas County filed a motion to dismiss based on improper venue.  Basically, there is a law stating that if you sue a county in West Virginia, you have to sue that county in it’s own courthouse, or in any either county in which the cause of action arose (which would be rare to be anywhere else).  But there is also a law stating that if you sue the State of West Virginia, you must sue in Kanawha County (location of the state capitol).  So what happens when both a county and the State are named defendants in a lawsuit?

Well we faced that very issue, and after the issue was briefed and argued, the Circuit Court Judge ended up ruling in my client’s favor, finding that venue was proper where the lawsuit was originally filed – in Kanawha County.  As a courtesy to defense counsel who represent governmental entities in West Virginia, since they are so generous among themselves with sharing circuit court orders and submitting them against plaintiff’s counsel, I will post a copy of the Judge’s order for submission or review by anyone who may find it helpful.

 - John H. Bryan, West Virginia Attorney.

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Laws of Search and Seizure in West Virginia

Here is a portion of the materials which I prepared for a continuing legal education seminar which I presented in Charleston, West Virginia a few weeks ago, dealing with some of the “black letter law” of searches and seizures in West Virginia.  But as I emphasized to the audience of mostly-civil litigation attorneys, this is “ivory tower” stuff that doesn’t always make a whole lot of difference in the trench warfare style of litigation that is criminal defense by jury trial.

Arrests

There first must be legal authority to arrest.  There must be a State law authorizing the arrest of a person who commits any particular act (See criminal offenses in the West Virginia Code).  Secondly, if the violation alleged is a felony, the officer must have probable cause to believe that the particular act was committed, and that the person being arrested was the person who committed the particular act, or else the act (whether felony or misdemeanor) must have been committed in the presence of the officer.  The arrest is then effectuated when the officer intends to arrest the person and communicates that intent to the person being arrested, and the person is physically restrained by the officer – either with their hands, through the aiming or discharge of a weapon, or through verbal commands that would lead a reasonable person to believe that he or she was not free to leave.

Arrest Warrants

The officer must submit a written complaint under oath or affirmation to a neutral or detached magistrate or judge, particularly describing the person to be arrested, and setting out the officer’s basis of probable cause to believe that a crime has been committed and that the person sought to be arrested committed the crime. See W. Va. Code § 62-1-1 and 62-1-2; State v. Schofield, 175 W. Va. 99 (1985).  The warrant may be executed (i.e., the person arrested) at any time or place within the state, unless the magistrate or judge restricts the execution to only such times as during which a magistrate is available to conduct an initial appearance. See Rule 4(a) of the West Virginia Rules of Criminal Procedure for Magistrate Courts.  The subject of the arrest warrant may be arrested in his or her own home, regardless of whether there is consent to enter the home.  However, there is a “knock and announce” requirement that officers must comply with, with a few exceptions. See Richards v. Winsconsin, 520 U.S. 385, 387 (1997) and Wilson v. Arkansas, 514 U.S. 927 (1995).  In order to arrest the subject in the home of a third party, the officer must have both an arrest warrant and either the third party’s consent, or exigent circumstances (see below).

Warrantless Arrests

Officers may make warrantless arrests in certain circumstances.  Such arrests are permitted for crimes committed in the presence of an officer, or for any felony for which the officer has probable cause to believe the subject committed.  Probable cause for a warrantless arrest is identical to probable cause required to secure a warrant. See Gerstein v. Pugh, 420 U.S. 103, 113 (1975).  In order to make a warrantless arrest for a misdemeanor, the facts and circumstances within the knowledge of the arresting officer must be sufficient to warrant a prudent man in believing that a misdemeanor is being committed in his presence. Syllabus, Simon v. West Virginia Dep’t of Motor Vehicles, 181 W. Va. 267 (1989).  

A warrantless arrest in the subject’s home must be justified not only by probable cause, but by exigent circumstances which make an immediate arrest imperative. Syl. Pt. 2, State v. Mullins, 177 W. Va. 531 (1987).  The test for “exigent circumstances” is whether the facts would lead a reasonable, experienced police officer to believe the evidence might be destroyed or removed before a warrant could be secured, or whether there is evidence both that the officer was actually motivated by a perceived need to render aid or assistance, or whether a reasonable person under the circumstances must have thought that an emergency existed.” See State v. Cecil, 173 W. Va. 27 (1983).  After the arrest, the subject must be taken “without unnecessary delay” before a magistrate in the county in which the arrest was made. See W. Va. Code § 62-1-5.

Jurisdiction

The arrest must occur within the proper jurisdiction of the arresting officer.  For municipal police officers, the jurisdiction is within the corporate limits of the municipality. See W. Va. Code § 8-14-3.  In some circumstances there may be a “mutual aid agreement” that could extend the jurisdictional range. See W. Va. Code § 15-10-1.  Municipal officers also may arrest suspects outside the municipality if they are within the county or counties in which the municipality is located (as if they were a deputy), if the violations were committed within the municipality – especially in pursuit situations.  Deputy sheriff’s have essentially the same arrest powers as a municipal police officer, except that their jurisdiction is always the county in which they are employed.  State troopers have statewide jurisdiction to make arrests, and can furthermore command any other state, county, or municipal law enforcement officers to assist him or her (under proclamation of the governor).  

Search and Seizure

Amendment IV of the U.S. Constitution provides that “The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched and the persons or things to be seized.  Article III, Section 6 of the West Virginia Constitution provides for the same protections, almost-verbatim.

Search warrants may be issued by municipal judges, magistrates, and circuit court judges, if they are within the jurisdiction of the location of the items sought to be seized.  Probable cause must be set forth in a written affidavit detailing the probable cause and listing and describing the place to be searched and the items to be seized.  The warrant must be executed by the officer who obtained the warrant within ten days of being issued. See W. Va. Code § 62-1A-4; State v. Clements, 175 W. Va. 463 (1985).

All warrantless searches are per se unconstitutional, but there are several exceptions, one of which is consent. See State v. Buzzard, 194 W. Va. 544 (1995).  Another exception is the “emergency doctrine,” which provides that a warrantless entry into a suspect’s home can be proper where there is an immediate need for assistance in the protection of human life, the search or entry by the officers is motivated by an emergency, rather than by an intent to secure evidence, and there is a reasonable connection between the emergency and the area in question. State v. Cecil, 173 W. Va. 27 (1983).  

Another exception is a search incident to a lawful arrest, which covers the individual’s person and “immediate geographic area under his physical control,” namely for physical safety purposes. See State v. Sugo, 193 W. Va. 388 (1995).  Another exception is the “open fields doctrine,” which excepts areas outside the “curtilage” from the warrant requirement (i.e., land, vacant lots, water). See State v. Lilly, 194 W. Va. 595 (1995).  Yet another exception is the “plain view doctrine,” which holds that if an officer observes what he has probable cause to believe is incriminating evidence or contraband, and if he is legally in a physical location that he is entitled to be, then he may seize any of those items without a warrant.  

Warrantless searches may also be allowed in situations of “hot pursuit,” where the officer is pursuing a suspect with “speed” and with “continuous knowledge of the alleged perpetrator’s whereabouts.”  Items that can be searched or seized includes anything observed while looking for the suspect. See Goins v. James, 189 W. Va. 634 (1993).  However, a warrantless entry into a home still requires that exigent circumstances exist. See State v. Cecil; U.S. v. Shelton, 737 F.2d 1292 (4th Cir. 1984).

Vehicles

Moving vehicles can be stopped if reasonable suspicion exists, and they can be searched if probable cause exists.  Reasonable suspicion requires that an officer articulate facts which provide some minimal, objective justification for the stop.  It has to be something more than an “inchoate and unparticularized suspicion or hunch.”  Probable cause exists when the facts and circumstances as established by probative evidence are sufficient to warrant a prudent person in the belief that an offense has been committed and that the subject committed it.  

Pursuant to the lawful arrest of the driver of a moving vehicle, the passenger compartment of the vehicle may be searched, as well as any open or closed containers in the passenger compartment that are not locked. See New York v. Belton, 453 U.S. 454 (1981).  After an arrest, officers may perform a vehicle inventory of the contents of an arrestee’s vehicle if the vehicle is being legally impounded and the owner of the vehicle is not present or otherwise available to provide for the safekeeping of the vehicle contents.  However there are requirements that must be met. See State v. Goff, 166 W. Va. 47 (1980); State v. Perry, 174 W. Va. 212 (1984); South Dakota v. Opperman, 428 U.S. 364 (1976).

Traffic stops are not considered arrests, unless the driver is detained above and beyond what is necessary to issue a traffic citation or warning, or unless physical force or intimidation is used to detain a driver.  Both drivers and passengers may be ordered out of a vehicle at any time for any reason. See Pennsylvania v. Mims, 434 U.S. 106 (1977).  Officers are not required to inform drivers that they are free to go following the issuing of a citation or warning. Ohio v. Robinette, 519 U.S. 33 (1996).

Pedestrian Stops

Regarding pedestrian stops, usually involving an officer requesting identifying information from an individual, refusal to produce identification may not alone form the basis for an arrest.  Wilmoth v. Gustke, 179 W. Va. 771 (1988).  However, if there is express statutory direction requiring one to do so, or if the officer communicates a specific reason why the information is being sought with respect to official duties of the officer, then the refusal may form the basis for a charge of obstruction under W. Va. Code § 61-5-17(a). State v. Srnsky, 213 W. Va. 412 (2003).

Computers

To search or seize a computer located in a suspect’s home, an officer must obtain a search warrant.  In order to obtain a warrant, there must be a written complaint under oath, as with arrest warrants, which must adequately describe the computer and/or other items to be seized – such as all of the various accessories and drives that may be connected with the computer (i.e., backup or portable hard drives, digital cameras, printers, DVD’s, etc.) and which connects the same to some crime alleged to have been committed.  Proper procedures must be used in disconnecting and dismantling the computer or drives, and should be performed at the direction and instruction of whatever forensic computer examiner will be analyzing the computer, or else data may be lost or destroyed. U.S. v. Simons, 206 F.3d 392 (4th Cir. 2000)

To search or seize computers outside a suspect’s home, i.e., place of employment, the suspect must not have a legitimate expectation of privacy in the computer – it must not be one that society is prepared to accept as objectively reasonable.  Thus, each situation is unique and turns on the specific facts involved, such as whether the office is private or locked, whether the computer is password protected, whether other employees have access to the computer, whether the employer has an applicable computer policy that allows a search, whether the employer monitors computer use.  Law enforcement officers routinely may, and do, obtain subpoena’s for the suspect’s information held by the ISP provider, such as their account information, their “ISP”, address, and website history, for which there is no legitimate expectation of privacy. See U.S. v. Hambrick, 225 F.3d 656 (4th Cir. 2000); Smith v. Maryland, 442 U.S. 735 (1979).

Note:   Please understand that an infinite amount of time was not spent on this material ensuring it’s accuracy.  Thus, there may be mistakes in it.  If you are faced with a specific legal situation, you need to speak with an attorney individually about your particular circumstances.  If you are an attorney, you need to rely on your own research and work product rather than what I have written here.  This is meant merely to be helpful.

 - John H. Bryan, West Virginia Attorney.

Finally the rest of the country finds out that prosecutors have too much power

Not that I care what happens to former Senator Stevens in Alaska….  In fact I despise career politicians on both sides and believe that there should be term limits for all congressmen.  But when a federal judge tossed a conviction and opened his own special prosecution of the prosecutors who “secured” Stevens’ conviction, I think it was a great moment for our country.  I wish there could be more.  Because the same conduct happens every day across the country at the state level with hardly a sigh from the presiding trial judges, much less an overturned conviction and a reverse prosecution.

The fact is that we give prosecutors way too much power.  We have so many damned laws in West Virginia – and in every other state – that almost everything you do everyday is illegal.  Everything.  Want to take your grandson rabbit hunting?  In all likelihood you will violate a dozen laws governing the transport of firearms and hunting regulation red-tape before you return home.  

And if it’s not illegal, then all it takes to be prosecuted is for some lying cop to say that you did something illegal.  In West Virginia, every allegedly illegal act carries a potential sentence of up to 1 year for most misdemeanors, and years and years for the felonies.  Then, the prosecutors can charge you with a dozen counts for every allegedly illegal act, putting you in the position of spending the rest of your life in prison.  They have the power to take away your freedom and your property.  This power is unchecked.  It’s not usually a problem when you have an honest and sensical prosecutor.  But what happens when you have a devious or evil person as the prosecutor?  You have a real problem – one which has occurred and has been documented across the country time after time.

Our only defense?  Criminal defense attorneys and judges.  And good luck getting a judge to toss a conviction for a non-former U.S. Senator.

 - John H. Bryan, West Virginia Attorney.

2009 National Champions….

Proposed West Virginia DUI legislation before Judiciary Committee

Today the Senate Judiciary Committee of the West Virginia Legislature is hearing evidence on proposed legislation that would reign in the WV Division of Motor Vehicles and their rampant disregard for the due process of rights of those accused of DUI in West Virginia.  The Charleston Gazette had an article this morning on the hearings.  In West Virginia, DUI charges take two different routes: a criminal action against the defendant personally, and then a civil action against the accused’ driver’s license.  In these civil hearings, there is a notorious lack of fairness and due process rights accorded to the driver.  The proposed legislation attempts to create more fairness in the process.  Though extremely late notice was given regarding today’s hearing, several criminal defense attorneys from around the state who defend DUI’s in West Virginia, have been invited to speak to the committee.  Let’s wish them luck and encourage the Legislature to enact this legislation.  

We should always err on the side of freedom and liberty – and never on the side of tyranny.  Besides, less government is always better….

 - John H. Bryan, West Virginia Attorney.

Back when men were men…

There was a moving article in the Register-Herald this morning about the passing of Raleigh County attorney William H. File, Jr.   Though I did not know him, I can’t help but admire the life that this man led.

Aside from a four-year stint during which he served the United States during World War II, File had served the citizens of southern West Virginia since 1937 as a member of File, Payne, Scherer and File, a firm started by his uncle Ashton File in 1902.

File’s time in the Navy was anything but uneventful, as he witnessed first-hand the invasions of Normandy and Sicily and, shortly after the invasion of Okinawa, was involved in a kamikaze attack off the coast.

During the attack, the ship of which he was the commanding officer served as a rescue boat of sorts for the crew of the larger USS Callaghan, which exploded and sank after it was struck by a kamikaze.

For his service, File received a Legion of Merit as well as a Silver Star. 

As I noted a few days ago, many in our country are doing their best to make sure that we churn out a bunch of sissies, who can’t even be in the presence of a wooden mock gun – much less defend the world against a brutal and evil empire – as this man did.  And then he returned to America and continued to practice law as if nothing had ever happened.  People of that generation were passionate about everything they did – from defending the country to practicing law.  To be enthusiastic about the practice of law until your 90’s is truly remarkable and is probably not something we will see very often in the future.

How many modern day lawyers would have so many people come forward at their death and extoll their virtues and their life?  Nowadays it’s all about money. Most people would cut your throat if they thought they could make a buck – especially lawyers.  Incivility is the rule, and arrogance and ego reigns supreme. Everyday members of our greatest generation are disappearing, and leaving with them are the final remnants of an era when men were men….

DOJ investigations of pattern or practice police misconduct resume (and shift course)

You might have noticed in the news today, as per CNSNews.com, that the DOJ has commenced an investigation of Arizona Sheriff Joe Arpaio – a man known for the strict enforcement of laws – and who is hated by the political left.  The article doesn’t say so, but his Sheriff’s Department is being investigated by the Special Litigation Section of the Civil Rights Division of the DOJ – a place I once worked.

It’s probably not a coincidence that this investigation comes on the heels of the inauguration of President Obama.  Either every career liberal in the DOJ has finally been given a green light to conduct their dream investigations, or grateful federal employees are scrambling to secure their jobs in light of the sudden shift in political leaning in the executive branch.

The Special Litigation Section is responsible for pattern or practice police misconduct investigations (among other things) – which results only in civil – not criminal – litigation.  Individual incidents could be prosecuted criminally by the Criminal Section of the Civil Rights Division.  

You will notice from the few and far between police misconduct investigations in the past 8 years, that they were not high on the Bush Administrations’ priority list – except to assist law enforcement agencies throughout the country in evading civil 1983 lawsuits.  For instance, see this letter to the Austin Police Department from the SLS.  By the way, this letter, and others that the DOJ provides the public, contains some great stuff for plaintiff’s attorneys, or anyone else who wants to learn more about proper “use of force” and “supervisory oversight” and other policies and procedures for police departments – at least according to the DOJ.

Nevertheless, the SLS has not yet even listed the Arpaio investigation in it’s website.  And until then, the public will not know what the specific allegations are.

 - John H. Bryan, West Virginia Attorney.

The “Kramer Rule” to affect West Virginia jury trials?

There was a story that I saw yesterday in the Register-Herald titled “Berkeley delegate wants judges’ donations disclosed in trials.”  Apparently, as per a bill introduced by Delegate Jonathan Miller, “[b]efore the first shred of evidence is put before a jury, members would know how much — if anything — opposing attorneys dumped into the presiding judge’s campaign chest.”

What I want to get is disclosing contributions to sitting judges from attorneys, first and foremost,” Miller, R-Berkeley, said Monday. “They are very involved in these lower races, circuit judges and family court. And I want disclosure to be compelled.”

Miller is labeling his proposal the “Jim Kramer Rule,” named after the investment guru, who, under Securities Exchange Commission rules, must disclose his personal holdings before pitching any stock.

The proposed legislation purportedly would not apply to criminal cases – not that it would be constitutional anyways….  This legislation begs the question: what in the heck is the point of doing this?  The reason that we have a jury in civil trials in West Virginia, is to decide contested issues of fact.  Of course the lawyers always believe that the trial judge favors and/or helps one side or the other somewhat during the trial.  But from the point of view of the jury, the judge is supposed to be neutral, and is only assisting them in doing their job.  In fact, the judge will instruct them not to try and speculate as to what he thinks about the case.  To instruct the jury from the beginning on which lawyer contributed campaign donations would confuse the jury from the start, and would possibly cause prejudice to an innocent party.  The lawyer is only representing the client.  Now if the client has some sort of improper connection with the judge, that could be different, in which case there already exists a procedure for the recusal of a judge if there exists a conflict.

Regardless, there’s no way this legislation, if passed, would get through the West Virginia Supreme Court of Appeals – all of whom are judges who arrived where they are, in part, through campaign contributions.

 - John H. Bryan, West Virginia Attorney.

When the judge starts prosecuting you, you know you have a problem….

There is a story in the Charleston Daily Mail today titled, “Judge refuses to accept guilty plea from ex-firefighter.”  Apparently the defendant was charged with second degree arson for the destruction of a boat dock.  According to the assistant prosecutor, it may have been an accident – albeit a reckless one.  But recklessness or negligence, doesn’t qualify as “willful or malicious” if there was no intent to set a fire or burn an object – thus giving the prosecutor good reason to plead the case to a destruction of property – a misdemeanor.

But apparently the judge wasn’t having it, and refused to accept the plea.  Something that I have noticed in arson cases: the judges’ take them very seriously. When buildings or objects are getting burned in their districts, people pay attention and so do the judges.  The judge doesn’t want to be the one who let the defendant out on probation only to have something else burn down.

And being that there is no misdemeanor arson charge, the only lesser-included available is destruction of property – which carries a maximum of one year in jail. Oftentimes, an arson defendant already will have served a considerable amount of time in jail because the bond was most likely set extremely high – or else they have been on home incarceration.  The result is that the person will not do much time – and hence, the judge doesn’t want to accept the plea.

But can the judge do that?  Yes, if he finds there is no factual basis for the plea.  But, is there anything stopping the prosecutor from dismissing the charge and recharging destruction of property?  Probably not – unless the judge is going to try the case, which of course he can’t do.  In any event, the case would have to be dismissed eventually due to lack of speedy trial.

 - John H. Bryan, West Virginia Attorney.

Do prosecutors really believe law enforcement are angelic?

I frequently end up getting retained to represent criminal defendants in cases involving law enforcement officers as “victims” – usually in counties other than the one in which I reside.  Without fail, the prosecutor assigned to the case will be gung-ho moving forward with the prosecution, even if the evidence is slim to non-existent  (most usually consisting solely of the verbal testimony of the officer).  Mind you, I have encountered a prosecutor who had the gumption to call a spade a spade and dismiss the case – but that was an exception to the rule.

The other day I was speaking with an assistant prosecutor whom I had never met before, regarding a similar case.  The facts were extremely disputed, not just by the defendant and the “victim,” but by the eyewitnesses.  Basically there was a fistfight involving a civilian and an off-duty officer.  When other officers responded, do you think they approached the situation fairly?  Of course not, they arrested the civilian without taking any eyewitness statements – based solely on the statement of the off-duty officer – and of course added in a “contempt of cop” charge (obstruction) as the cherry-on-top, for allegedly not withdrawing from the fight quickly enough.  Since they were not present when the fight began, they have no idea who was the aggressor, and who was engaging in self defense.

When I tried to explain this disparity to the prosecutor, suggesting that the charges be dismissed, he looked at me like I was crazy, replying something to the effect of “our officers are perfect creatures molded in the image of Christ.”  

Do law enforcement officers transcend humanity when they get sworn in?  Are they somehow immune from human flaws?  Has no law enforcement officer on the face of the earth, throughout recorded history, ever told a lie?  Ever protected one of their own? Ever trumped up charges against someone they didn’t like?  Was the term “blue wall” created by some UFO researcher digging through the National Archives?  Of course not.  There are thousands of provable, documented incidences, and the fact that a prosecutor can’t have an open mind about such things is just plain scary.

I suppose this is why our founding fathers guaranteed us the right to be tried by a jury – unless of course your in West Virginia and are charged with a misdemeanor and you fail to request one within twenty days….

 - John H. Bryan, West Virginia Attorney.

It’s time for “zero tolerance” for brain dead government employees…

In Colorado, a graduating high school senior with a 3.5 grade point average, who was a member of the young marines’ drill team, was suspended for having mock rifles made of wood and duct tape in her car on school property.  She is being told by the school that she may be expelled due to Colorado’s “zero tolerance” law regarding guns – or even likenesses or images of guns – on school property.

Political correctness and incompetent government teachers and employees are doing their best to turn our citizens into a bunch of wimps, who can’t even handle seeing a fake gun spun by a burgeoning marine  - a remarkable young woman who is getting ready to serve her country in order to give those idiot government employees the safety and security that they take for advantage everyday.  

General George Patton must be turning over in his grave.  The generation we are producing now is not capable of living up to the same set of challenges as his generation.  To prove my point: General Patton gave this speech to the Third Army in 1944 – to men who grew up as regular Americans, but who were now faced with the seemingly impossible task of facing the brutal Nazi war machine:

• Men, this stuff that some sources sling around about America wanting out of this war, not wanting to fight, is a crock of bullshit. Americans love to fight, traditionally. All real Americans love the sting and clash of battle. You are here today for three reasons. First, because you are here to defend your homes and your loved ones. Second, you are here for your own self respect, because you would not want to be anywhere else. Third, you are here because you are real men and all real men like to fight.

• Americans love a winner. Americans will not tolerate a loser. Americans despise cowards. Americans play to win all of the time. I wouldn’t give a hoot in hell for a man who lost and laughed. That’s why Americans have never lost nor will ever lose a war; for the very idea of losing is hateful to an American.

• Every man is scared in his first battle. If he says he’s not, he’s a liar. Some men are cowards but they fight the same as the brave men or they get the hell slammed out of them watching men fight who are just as scared as they are. The real hero is the man who fights even though he is scared. Some men get over their fright in a minute under fire. For some, it takes an hour. For some, it takes days. But a real man will never let his fear of death overpower his honor, his sense of duty to his country, and his innate manhood. Battle is the most magnificent competition in which a human being can indulge. It brings out all that is best and it removes all that is base.

• Remember that the enemy is just as frightened as you are, and probably more so. They are not supermen.

• All through your Army careers, you men have bitched about what you call “chicken shit drilling”. That, like everything else in this Army, has a definite purpose. That purpose is alertness. Alertness must be bred into every soldier. I don’t give a fuck for a man who’s not always on his toes. You men are veterans or you wouldn’t be here. You are ready for what’s to come.

• There are four hundred neatly marked graves somewhere in Sicily. All because one man went to sleep on the job. But they are German graves, because we caught the bastard asleep before they did.

• An Army is a team. It lives, sleeps, eats, and fights as a team. This individual heroic stuff is pure horse shit. The bilious bastards who write that kind of stuff for the Saturday Evening Post don’t know any more about real fighting under fire than they know about fucking!

• We have the finest food, the finest equipment, the best spirit, and the best men in the world. Why, by God, I actually pity those poor sons-of-bitches we’re going up against. By God, I do.

• My men don’t surrender. I don’t want to hear of any soldier under my command being captured unless he has been hit. Even if you are hit, you can still fight back.
• I believe in the old and sound rule that an ounce of sweat will save a gallon of blood.

• All of the real heroes are not storybook combat fighters, either. Every single man in this Army plays a vital role. Don’t ever let up. Don’t ever think that your job is unimportant. Every man has a job to do and he must do it. Every man is a vital link in the great chain.

• Each man must not think only of himself, but also of his buddy fighting beside him. We don’t want yellow cowards in this Army. They should be killed off like rats. If not, they will go home after this war and breed more cowards. The brave men will breed more brave men. Kill off the Goddamned cowards and we will have a nation of brave men.

• Don’t forget, you men don’t know that I’m here. No mention of that fact is to be made in any letters. The world is not supposed to know what the hell happened to me. I’m not supposed to be commanding this Army. I’m not even supposed to be here in England. Let the first bastards to find out be the Goddamned Germans. Some day I want to see them raise up on their piss-soaked hind legs and howl, “Jesus Christ, it’s the Goddamned Third Army again and that son-of-a-fucking-bitch Patton”.

• Sure, we want to go home. We want this war over with. The quickest way to get it over with is to go get the bastards who started it. The quicker they are whipped, the quicker we can go home. The shortest way home is through Berlin and Tokyo. And when we get to Berlin, I am personally going to shoot that paper hanging son-of-a-bitch Hitler. Just like I’d shoot a snake!

• When a man is lying in a shell hole, if he just stays there all day, a German will get to him eventually. The hell with that idea. The hell with taking it.   We’ll win this war, but we’ll win it only by fighting and by showing the Germans that we’ve got more guts than they have; or ever will have. We’re not going to just shoot the sons-of-bitches, we’re going to rip out their living Goddamned guts and use them to grease the treads of our tanks. We’re going to murder those lousy Hun cocksuckers by the bushel-fucking-basket. War is a bloody, killing business. You’ve got to spill their blood, or they will spill yours. Rip them up the belly. Shoot them in the guts. When shells are hitting all around you and you wipe the dirt off your face and realize that instead of dirt it’s the blood and guts of what once was your best friend beside you, you’ll know what to do!

• I don’t want to get any messages saying, “I am holding my position.” We are not holding a Goddamned thing. Let the Germans do that. We are advancing constantly and we are not interested in holding onto anything, except the enemy’s balls. We are going to twist his balls and kick the living shit out of him all of the time. Our basic plan of operation is to advance and to keep on advancing regardless of whether we have to go over, under, or through the enemy. We are going to go through him like crap through a goose; like shit through a tin horn!

• From time to time there will be some complaints that we are pushing our people too hard. I don’t give a good Goddamn about such complaints. I believe in the old and sound rule that an ounce of sweat will save a gallon of blood. The harder we push, the more Germans we will kill. The more Germans we kill, the fewer of our men will be killed. Pushing means fewer casualties. I want you all to remember that.

• There is one great thing that you men will all be able to say after this war is over and you are home once again. You may be thankful that twenty years from now when you are sitting by the fireplace with your grandson on your knee and he asks you what you did in the great World War II, you won’t have to cough, shift him to the other knee and say, “Well, your Granddaddy shoveled shit in Louisiana.” No, Sir, you can look him straight in the eye and say, “Son, your Granddaddy rode with the Great Third Army and a Son-of-a-Goddamned-Bitch named Georgie Patton!

We all know that this speech could not be given now.  The next generation tasked with rescuing good from evil will know more about “tolerance” than they will about courage, or about being tough.  And these “zero tolerance” laws, where great young kids are getting suspended and expelled for having a boy scout pocket knife in their car – or even for their younger brother leaving a toy gun in the backseat of their car – is at the root of the problem.  Or is it just a symptom of a much deeper problem?  So what if Johnny high school senior brought his shotgun in the trunk of his car or in his truck because he wanted to go duck hunting after school?  God only knows what our grandparents brought to school – and they turned out alright – and ended up saving the world from evil.  And the idea of suspending kids for having a mock-up wooden gun for spinning as part of the Young Marines?  What’s next?  I suppose that only time will tell.  What I do know, is that cases like this prove that bureaucrats and their mind-numbed robots are not equipped to prepare our children for the challenges that lie ahead. 

 - John H. Bryan, West Virginia Attorney.

Murder Case Appeal Denied

As was reported in the Register-Herald this morning, a 2nd degree murder conviction being appealed by myself and Tom White of Lewisburg was denied by the West Virginia Supreme Court of Appeals last week.  The vote was 4-1 – Menis Ketchum, a Justice having criminal defense experience, having voted to hear to hear the appeal.  One of the issues appealed was the admission of a “dying declaration,” which is an exception to the hearsay rule.  Justice Ketchum noted during the hearing that there has been a nationwide trend questioning the dying declaration exception, such as has long been the case in Alabama – See Hutcherson v. State, and indeed apparently even in India.  Exceptions the hearsay rule still have to hinge on the reliability of the statements.  If the dying person had a motive to lie, then the reliability of the statement should be questioned and it possibly should not be admitted.

In Hutcherson, the Court of Appeals of Alabama noted that “[t]hough a dying declaration is not presumed involuntary as is an extrajudicial confession, yet it must be treated with a jaundiced eye.  It is predicated on the assumption of death-bed freedom from vengefulness and mendacity.  The validity of this assumption would seem difficult of demonstration. Hutcherson v. State, 40 Ala.App. 77, 108 So.2d 177 (1958).

The Alabama court cites a prior Alabama case which gives this warning:

“There are many reasons why dying declarations should be received and weighed with great caution. First, They are necessarily wanting in that greatest test of the credibility of oral testimony, cross-examination. Second, The jury are without the opportunity of observing the temper and manner of the declarant.Third, Such testimony is generally given by relatives and friends of the deceased, who had watched by his bed-side, and bias in his favor is to be expected.Fourth, All narrations of the other men’s sayings should be scrutinized with care, because what men say is so liable to be misunderstood. This is shown in the fact that when two or more witnesses, no matter how respectable, attempt to repeat a conversation that was heard by each, very marked differences will frequently be observed in their several narratives. Fifth, Many persons, even in serious conversation, assert as facts those things of which they have only strong convictions, but have no knowledge derived from the senses. Well may we, in the language of the judges and text-writers, say that such evidence is received from necessity, and to prevent the escape of offenders who commit the awful crime of murder. * * *”

Shell v. State, 88 Ala. 14, 7 So.2d 41. 

Note: this is is no way represented as a comprehensive legal argument regarding dying declarations – only some off-the-beaten-path language that I encountered and felt was pertinent – probably only useful in attempts at encouraging a trial judge to second guess the reliability of a dying declaration sought to be admitted to a jury.  There are obviously better appellate arguments grounded in law.  This is not that.

Isn’t it frightening that you can be convicted of murder in West Virginia and not be able to appeal your case?  We need either an appeal as of right for certain criminal cases, or an intermediate court of appeals.  And we can afford it, we just need to cut out some of the entitlements that are handed out so generously in our state.

 - John H. Bryan, West Virginia Attorney.

Why not just cut out the middle man?

There was a story posted yesterday in the ABA Journal, titled “Lawyer Reportedly Went Undercover in Drug Sting, Snagging Ex-Clients“:

Frank Pignatelli was facing a possible indictment as a co-conspirator when he agreed to work with authorities in the drug sting, according to a story in the Akron Beacon Journal. Now he’s representing drug defendants and other accused criminals in Denver.

…

The Wall Street Journal Law Blog says the story has raised hackles among some legal bloggers. But Mark Bennett of the Defending People blog says it is possible that Pignatelli’s clients were using him to commit crimes. “In that case, what they told him was not privileged, and it’s hard to sympathize with either him or them,” he writes.

As I’ve said before, one thing that people should take into account when retaining a lawyer is the moral fiber and character of any particular person.  In my opinion, there are severe disadvantages to hiring one of these shyster lawyers who would slit your, or anyone else’s, throat if they thought they could make a buck at it – client or not.  We all know who they are in our respective communities.  Unfortunately, the nature of the profession seems to attract the type, and there’s no shortage wherever you go.  I suppose these “clients” of Pignatelli got what they deserved.

Would you really want your life, or your case (or both), in the hands of someone who jurors can see through like an ice sculpture?  Someone who a juror can look at, and say, “I really don’t trust that guy….”  Someone who just talks a little bit too fast.  Someone who gives you that feeling that your getting lied to….  Of course, it also doesn’t help build credibility with the jury if your lawyer was the undercover informant who busted you.

 - John H. Bryan, West Virginia Attorney

Computer Crimes and Steganography

It wasn’t that long ago that I observed that computer crime prosecutions were on the rise in West Virginia.  This morning the Charleston Gazette published an article titled “Hidden digital files may be going unnoticed by law enforcement.”  The article talks about a method of concealing messages/images/video/audio within other digital files, called steganography, which is a process of hiding one digital file within another, rendering it “literally invisible.”  This is not something that I have seen come up in West Virginia, but apparently it has been popping up elsewhere.

The West Virginia State Police does have some type of anti-steganography software, but apparently has of yet been unsuccessful in detecting any.  According to the article, anyone with access to a computer, including registered sex offenders who are being monitored, can access this method, merely by googling “information hiding.”

This will be something to look out for as time goes on.  I predict that we will start seeing some criminal prosecutions in West Virginia where incriminating information is found encrypted on some innocuous-looking files, probably on the hard-drives of registered sex offenders who are attempting to evade their overseers.  But that brings up an interesting question – can we find out who encrypted any such files, and when?  And can we be certain that if law enforcement claims to find such a hidden file, that it wasn’t in some way planted after-the-fact.  I guess we will eventually find out.

 - John H. Bryan, West Virginia Attorney.

Things I should have done…

On things he “should have done” regarding starting his own practice, David Tarrell of the Nebraska Criminal Defense Blog, listed several things that hit close to home, and which I wholeheartedly agree with – some that I did do, and some that I also did not do but should have.

First on his list is “bought a Mac.”  Fortunately I did do this, and have never regretted it.  In fact, I bought several Macs.  Number 10 on his list is that he should have bought an iphone/ ipod sooner.  I finally got an iphone about a month ago, and now I don’t know how I ever functioned without it.  They go together (the iphone and Mac).

Second, third, and fourth has to do with billing.  One “thing I should have done” that I would add to the billing category, is making sure to take cases that allow you to bill.  A wise attorney told me as his one piece of advice to me when I started my practice, “don’t waste your time taking cases that your not gonna get paid on.”  That seems obvious enough, but you would be surprised.  It’s easy to do.  For instance, any case where your not paid a substantial amount of what the fee is going to likely be, up front, it is extremely likely that your not getting paid for your time.  Some are worth it – e.g., personal injury cases – most are not.  Of course, the realization that he should have “gotten more money upfront” is number 7 on his list.  I would put it at number 1 on mine.

Fifth, he lists “not taking business I had no business doing.”  For me, this was real estate work.  At least one time, I agreed to do a title search, etc., and after I had wasted about 30 minutes floundering around, I said, forget it, leave this to the real estate attorneys, and referred the client to one.  Another one is the drafting of any type of trust.  Forget about it.  I’ll stick to litigation.

He also notes that he should have implemented G.T.D. sooner.  I’ll have to look into that one.

 - John H. Bryan, West Virginia Attorney.

Foundation of a false confession

Grits For Breakfast (hat tip: Simple Justice) posted on an insightful discussion by the Texas Court of Criminal Appeals’ Criminal Justice Integrity Unit (hey, we need one of those in West Virginia….) on false confessions and their proposed causes.  Grits notes that 

most police interrogation training in the United States is based on the so-called “Reid method,” which teaches there are three stages to the process of questioning suspects: Behavior analysis, the interview, and the interrogation.

But…

Much of the behavioral analysis taught by Reid and Associates amounts to “faux psychology,” said [Richard] Leo (San Francisco academic presenting to the above said group), about how guilty and innocent people behave that doesn’t stand up to scholarly rigor. Police are taught to believe these methods are so reliable that officers become “human lie detectors,” but excessive confidence in their ability to read deception cues can cause police to inadvertently assume guilt. That can directly lead to the more critical mistake: Moving too quickly from interview to an interrogation.

This guy is a perfect example of this.  For years I have been watching all of those cold case murder investigation shows.  In many, many of them, there is one central detective that was originally on the case, who was convinced that so and so committed the crime – despite the evidence.  Detectives are trained to believe that they can be human lie detectors, and it becomes personal to them – so much so that they start to have tunnel vision.  Then, 30 years later you see the case on some show, and you think, how could they focus on that person when it was obviously the other person?  It works the same way with false confessions.  Some “interviewees” can actually be convinced that they did have something to do with the crime.  Others can be tricked into confessing some guilt or sorrow regarding the victim, which can be portrayed as a confession.

I think John Grisham’s book, “The Innocent Man” should be required reading for criminal defense attorneys.  It will blow your mind how in one small town, so many people could be convicted of false confessions using the same flawed tactics by investigators.  Specifically, when you take an overbearing interrogator and match that person with a guarded, feeble, shy, and honest “interviewee,” the chances rise dramatically that the innocent “interviewee” will says something incriminating.  Meanwhile the real guilty person is long gone.

 - John H. Bryan, West Virginia Attorney.

Clarifications to the State Journal story on the Flanary case

The State Journal posted a story on their website this morning on the Flanary case. Since this blog has been getting a lot of traffic on this case, I have the usually-absent opportunity to correct some slight inaccuracies in the story – including some of my quotes that are slightly out-of-context. Though you can hardly blame the reporter when the Complaint is 45 pages with 39 defendants.  The article stated the following:

The case, Flanary v. Pocahontas County et al., like many police or government liability cases, will be hard to prove, according to John Bryan, the Monroe County attorney who filed the suit.

Actually I said that police and governmental liability cases are difficult cases. I was not saying that there was anything particular about the facts of this case that will make it any more difficult to prove than other police and governmental liability cases.  The article further noted that:

The alleged incidents occurred in Pocahontas County and many of the involved parties live there as well. But Bryan said he opted against filing the suit there. Instead, the suit was filed in Kanawha County. “I think there’s a benefit to getting the whole mess out of Pocahontas County,” he said.

Actually, since several state agencies are defendants in the suit, state law mandates that the proper venue for the case is Kanawha County. Thus, it really wasn’t my choice – as I explained to the reporter when she asked me why it was filed in Kanawha County. Though it is true that there is an obvious benefit to not having to sue a county in their own courthouse.  The article continued:

Upon his release, Flanary had to go back to jail and immediately posted bail. As soon as he was released, court documents said, Snowshoe had him rearrested due to a perceived threat to Rock. Flanary’s lawsuit said the resort then barred him from all Snowshoe properties, including his own townhouse. Court records said Snowshoe officials eventually had him arrested a third time, alleging a harassing phone call between Flanary and a Snowshoe employee that was immediately acted upon by authorities.

Actually, it was vice-versa. The first time he was released on bond, indeed the same day, Snowshoe contacted authorities and said that he allegedly made a threat to commit a crime over the phone.  And Snowshoe did not bar him from entering his own townhouse, but they did bar him from all other Snowshoe property – though they didn’t explain to him how he would actually get to his townhouse without touching foot on Snowshoe soil since it sits in the middle of the resort.   Then, the second time Mr. Flanary bonded out from jail, Snowshoe had arrested for allegedly driving into the neighborhood that Mr. Rock lives.

- John H. Bryan, West Virginia Attorney

“Handling the Police Liability Claim” in West Virginia CLE

I am presenting the plaintiff’s portion of a continuing legal education seminar entitled “Handling the Police Liability Claim” in Charleston, West Virginia on March 27, 2009 at The Summit. I am presenting an overview of state law involving civil actions against police departments and officers, as well as an overview of common liability issues. Among the items discussed will be forms of immunity, criminal procedure rules, state case law, and state law causes of action. I probably will also discuss the significance and procedure of the Department of Justice’s pattern or practice investigations of police misconduct.

There also will be two seasoned defense attorneys there discussing an overview of federal law, an overview of the police internal investigation and disciplinary process, the filing of a state civil action, and the defending of a police liability claim. I am really looking forward to hearing their viewpoint and strategies for defending these cases.

You can register or find out more information on this CLE by calling 1-800-930-6182, or by visiting NBI’s website.

– John H. Bryan, West Virginia Attorney

Police and Governmental Liability Case Filed against the State and Pocahontas County

Here is a copy of a police liability/ governmental liability lawsuit that I filed last week against various agencies of the State of West Virginia, Pocahontas County, and several private corporations and individuals – including Snowshoe Mountain – on behalf of Brent Carter Flanary.  Since the case is obviously pending, I can’t comment on the facts other than to summarize what is in the pleadings, which are lengthy.  This case is about a man who had everything and ended up with nothing.

 The Complaint alleges that Mr. Flanary, who had a condo at Snowshoe and was going through a bitter divorce, was forced “off the mountain” by Snowshoe officials, with the help of local and state law enforcement – all of whom were communicating with Mr. Flanary’s ex-spouse.  During this process, Mr. Flanary suffered imprisonment, both in a jail and in a mental hospital, for over a month’s time, was beaten, sexually assaulted, attacked with gas grenades, tasers, German Shepherds, and fists – all over allegedly being publicly intoxicated, for which incarceration isn’t even a potential punishment (1st offense).  None of the aforesaid “use of force” incidents were in any way memorialized in a police report or “use of force” affidavit.  Instead, they were covered-up until after the expiration of the one year statute of limitations for false arrest and false imprisonment.  Additionally, much of the conduct underlying these allegations were videotaped.  One of the video tapes emerged nearly two years later, conveniently missing the relevant footage at the end of the digital footage (and also after the lapsing of the aforesaid statute of limitations).  Another video tape has yet to emerge.  But this didn’t stop the prosecutor – and now disbarred assistant prosecutor – from attempting to bring Mr. Flanary to trial on the criminal charges (without production – or even admission of the existence of – the video tapes).

You may not want to take all the time necessary to read the entire document.  However, this Complaint may be useful to other West Virginia attorneys who are facing – or considering –  police liability or governmental liability cases.  The area of law is extremely complex and tricky, and there’s not a whole lot out there to review prior to filing your own case.  A considerable amount of research went in to the drafting of this Complaint, including the review of just about every police liability case filed in West Virginia in the last five years.   – John H. Bryan, West Virginia Attorney

UPDATE:  State Journal story on the Flanary case posted 1/8/09.

                     Pocahontas Times story also posted 1/8/09.

View this document on Scribd

Stranger than fiction…

The strangest thing happened yesterday, and I have proof.  My office sent a letter to Directv in Arizona, regular U.S. Mail.  But it didn’t arrive there. Instead, it showed up in the mailbox of a physician who is family friend in Melbourne, Florida.  But not only is he a family friend, he has a farm in West Virginia as well.  It was properly addressed to Directv in Arizona.

 

Lawyers per capita in West Virginia

Since it was mentioned in my last post that new law school graduates are probably having a tough time during these tough economic times given their annually increasing number, I thought it pertinent to comment on a post at Simple Justice regarding the number of lawyers per capita in New York.  I looked up West Virginia for a comparison.

Scott Greenfield writes that for every 21 people in Manhattan, there is one lawyer: 

For many lawyers, the “big fish in a small pond” aphorism applies.  Not for lawyers in Manhattan.  It’s not easy surviving, no less thriving, in an environment so lousy with lawyers.  Hesitate and some other lawyer has just jumped your potential new client.  Have your receptionist take a message and the next one (or 1000) will take the call.

According to the Avery Index, overall, the District of Columbia leads the states with 276.7 lawyers per 10,000 residents, with the State of New York trailing at 20.4 lawyers per 10,000 residents.  Given these numbers, and having worked in D.C. before, I would have to disagree with Greenfield that New York is the most lawyer-saturated and competitive legal market.  D.C. is absolutely riddled with lawyers, thanks in most part to the federal government.

West Virginia ranks number 25 on the list with 8.8 lawyers per 10,000 residents, just behind Maine.  North Dakota ranks last with just 4.4 lawyers per 10,000 residents.  What about individual West Virginia counties?  I did my own non-scientific (and most likely non-accurate) study across five different types of West Virginia counties (bear with my math here, I may have done something horribly wrong):

Kanawha County: approximately 1 lawyer for every 106.4 people (roughly 93.98 lawyers per 10,000 residents)

Raleigh County: approximately 1 lawyer for every 528 people (roughly 18.9 lawyers per 10,000 residents)

Mercer County: approximately 1 lawyer for every 450 people (roughly 22.2 lawyers per 10,000 residents)

Greenbrier County: approximately 1 lawyer for every 430.7 people (roughly 23.2 lawyers per 10,000 residents)

Summers County: approximately 1 lawyer for every 812.5 people (roughly 12.3 lawyers per 10,000 residents)

Monroe County: approximately (but slightly more accurate) 1 lawyer for every 2,430.5 people (roughly 4.1 lawyers per 10,000 residents)

Note: these numbers will be slightly overestimated because they also include judges and non-practicing attorneys who reside in the particular county (with the exception of Monroe County since I already took the time to ferret those out)

 - John H. Bryan, West Virginia Attorney

Bailout for divorce lawyers?

There was an article yesterday in the Wall Street Journal jokingly wondering where the bailout was for the nation’s divorce lawyers.  They note that unlike bankruptcy or personal injury practice, divorce filings drop off steeply in a recession.  Apparently divorcing spouses are able to put financial planning ahead of their immediate differences.  

I have noticed as a regular pattern that the number of people calling about divorce situations drops off during the cold winter months – usually with the rest of the West Virginia economy.  Then, like clockwork, as soon as spring hits, and the birds and the bees return, so does the inclination to start looking for a divorce lawyer. Of course, there are those divorces that pop-up regardless of the economy and finances – and those are truly special cases, sure to give any attorney that personal gratification that comes with handling a very special divorce case.

The article also notes that: 

There are now some 1,162,124 attorneys in the U.S., and the law schools are spewing out graduates at a rate of 43,518 a year, all set adrift upon a public that increasingly doesn’t have money to pay for their services. There is no other profession more dependent on discretionary spending, except perhaps the oldest one.

People don’t realize that, unlike the medical, dental, or veterinary professions, there really is no limitation on the amount of students that can attend law school.  They are all over the place, and there are more popping up every year.  If you really want to get in one, you can somewhere.  But that doesn’t mean there is a job waiting for you when you get out (in debt).  

 - John H. Bryan, West Virginia Attorney

Trooper Misconduct Alleged in Kanawha County

The Charleston Gazette published an article today entitled, “Woman alleges trooper forced sex.”  This is an odd case.  Something just isn’t right.  The allegation is that this woman was leaving a bar in downtown Charleston and was pulled over by this trooper for suspicion of DUI.  During the course of the DUI stop there was some conversation between the two and the trooper ended up following her home to her married friends house.  There she alleges that he pressured her to have sex and that she only complied because he was a state trooper.  

The really surprising part is that this was at least partially caught on a surveillance camera by the married couple who lived in the home.

If I’m wearing my police liability hat, this sounds like a good case with rare video tape evidence of police misconduct and a potential rape situation.  But when I put on my criminal defense hat, this seems extremely suspicious.  The central question that I want answered is, who, what, where, why and how was this surveillance footage captured?  Could this be a set-up?  Did she call ahead?  If so, why not just call 911?  

With respect to a police liability civil case, there’s really no excuse for the trooper to have been in this house.  He most likely will have to explain that he went there consensually with her, which may not be illegal, but may get him fired and may get the State sued.  But from a criminal case standpoint, this woman’s story is extremely fishy.  It will be interesting to find out what the deal is with this video.

 - John H. Bryan, West Virginia Attorney

10 Things Never To Put In Email

Yesterday Roger Matus posted the 10 Things Never To Put In Email, at his Death By Email blog.  Here they are:

1. “I could get into trouble for telling you this, but…”
2. “Delete this email immediately.”
3. “I really shouldn’t put this in writing.”
4. “Don’t tell So-and-So.” Or, “Don’t send this to So-and-So.”
5. “She/He/They will never find out.”
6. “We’re going to do this differently than normal.”
7. “I don’t think I am supposed to know this, but…”
8. “I don’t want to discuss this in e-mail. Please give me a call.”
9. “Don’t ask. You don’t want to know.”
10. “Is this actually legal?”

Electronic documents are increasingly becoming an important aspect of all types of litigation, including criminal cases.  But illegally accessing that information has also become a crime in and of itself – and a federal one at that.  Thus, I’m working on a future post entitled, “101 Ways to Get Into Trouble Using Email.”  In summary, it’s not a good idea to put anything in an email that you wouldn’t be comfortable having displayed to a panel of twelve jurors on a huge screen.

 - John H. Bryan, West Virginia Attorney

FOIA lawsuit and West Virginia statutory notice provisions

There was a Charleston Gazette article last week detailing a ruling by a Kanawha County Circuit Court judge dismissing Massey Energy’s FOIA (Freedom of Information Act) lawsuit seeking emails from Supreme Court Justice Larry Starcher.

The grounds for dismissal were failure to comply with the statutory notice provisions.  When you are suing the state, even with respect to a FOIA case, you have to comply with the notice provisions of W. Va. Code Section 55-17-1, et seq. – which means that you have to give written notice via certified mail, return receipt requested, to both the “chief officer” of the state agency and the Attorney General, of the “alleged claim and the relief desired.”  It’s pretty basic really, though I ran afoul once in sending notice to the “general counsel” rather than the “chief officer.”  But regardless, there’s not much case law on the topic for either side in these situations.  But, if you don’t send the notice at all – to anyone – then the suit absolutely cannot proceed.

I was in court this morning on a governmental liability case such as this, and the attorney representing the other side is perhaps the most respected and knowledgeable attorney in West Virginia regarding these types of governmental liability issues.  He told me the behind-the-scenes story behind the adoption of this pre-suit notice statute, which I won’t recite here, but let’s just say that, like everything else in West Virginia, every statute has it’s ulterior motives.  The legislature should be required to put this stuff on the legislative record so that you can bring it up in your arguments.  Circuit Court’s usually don’t take judicial notice of attorney gossip.

One point of confusion is possibly this: if you sue over a FOIA violation against a political subdivision (i.e., county or city), W. Va. Code Chapter 55-17 doesn’t apply – there’s no notice required prior to suit.  The statute only applies to the state and all of it’s agencies and appendages.  And, the Supreme Court is an appendage of the state – and needless to say is usually not a good party to have on the other side of your lawsuit.  But then again, a very prominent attorney in the state asked me, after I brought up this issue, “is there anything wrong with writing someone a letter to tell them your gonna sue them?”  I guess there’s not – especially if you want to put their insurance carrier on notice of the potential claim.

Anyways, as a “little guy” who is almost always the “David” fighting the “Goliath” law firms, it makes me smile a little bit to see a big firm, representing possibly the most lucrative client in the state, make a mistake such as this.  They probably had gobs of lawyers working on this case, and had all the resources in the world at their disposal – and they still messed up. But all clients – even huge corporate clients – in the end, must count on individuals, both with their attributes and their mistakes.  

A Florida trial lawyer who was a family friend once said to my father (talking about taking on big firms): “though they may have a hundred lawyers working on the case, can’t but one of them speak at a time.”

 - John H. Bryan, West Virginia Attorney

Domestic Violence Petitions in WV – Part II

Apparently there are others out there who feel the same way that I do about the rampant abuse of domestic violence petitions in West Virginia.  See my prior post here.  Among others, and a flurry of comments, I received this email from a reader:

Mr. Bryan:

 I read your blog entry regarding the domestic violence (DV) petitions. Many law professionals have raised similar concerns inclusive of numerous judges who vocalized their discontent with pressure exerted on them predominantly by women’s groups. I’m not sure if you have seen this but a study was done attempting to quantify the financial impact to West Virginia regarding DV and false accusations of DV. As you may suspect this is a very difficult task and highly subjective. I have quickly read the report and will dive deeper into it over the coming holiday. Interestingly the impact from false allegations could range from $5.7M to $18.2 M. This is simply an estimate of the direct cost to West Virginia. I would suspect that indirect costs far exceed this number – potentially reaching to $100M. Indirects would include costs like welfare, money going to legal fees that would otherwise be spent in the non-service economy and therefore subject to sales tax, lost production and taxes from people losing jobs, and the cost of social services that are often a result of false allegations (i.e. kids being placed and paid for by public funds etc.). I also believe the direct costs outlined in the report are conservatively estimated (i.e. on the low end). Other costs include substantial tax subsidies to “advocacy” agencies to the tune of literally millions (you should take a look at the VAWA appropriations – it is staggering – not just financially but from a gender discrimination standpoint). If there number of claims were reduced by 60-80% theoretically their operating cost would reduce proportionally.

 This issue is far larger and significantly more important than most people realize. Women’s groups understood that oppressing women had serious negative effects on girls. We are now seeing the impact to boys resulting from the systematic discrimination against men. Last year’s college graduation rate was 58% women to 42% men. The steady gap increase is about 1% annually and will be at 60-40 within 2 years. That equates to 50% more women graduating from college than men. Some speculate that this is a result of different learning patterns between boys and girls. I don’t buy it. While our biological differences likely do present logistical challenges it doesn’t explain why it is a problem now and it certainly couldn’t explain the rapidity by which this transformation occurred. The long term effects of this are horrific.

 On the DV issue – there are numerous studies that date as far back as the 70’s that prove DV is nearly mutual, meaning it is 50-50. Please don’t misunderstand, I am not advocating that DV is not a problem I am simply stating a statistically relevant fact that men are not the sole perpetrators of DV or even the majority perpetrators. Even more alarming is that women initiate the physical violence at a rate that far exceeds men, almost 70% of the time. Women are also more likely to perpetrate violence against their children than men are. Note – men perpetrate violence against children more than women but when assessing violence parents initiate against their own children women are far more likely to be the perpetrators. Just one more fact – women are also much more likely to commit infanticide. These statistics are relevant and were compiled by agencies like the US Department of Justice and the CDC.

 My personal thoughts regarding DV have evolved substantially over the past couple of years. I was the victim of false allegations and subsequent discrimination by our “justice” system. Fortunately I don’t have kids. I’m now committed to working diligently in raising public awareness and trying to affect positive change in the current discriminatory DV legislation. We need to restore credibility to the DV orders and the judicial system. The idea that a DVPO can be issued with absolutely no proof is outrageous. The idea that a DVPO can be issued based on metrics that are virtually unproveable (i.e. psychological abuse) is absurd. The process violates the very foundations of our legal system. There is no due process afforded to men  accused of DV. There is no recognition that women are equally perpetrating DV. It really is insane.

 If you’re interested I can forward additional information. I would greatly appreciate your engagement in this issue. It is important for everyone – men, women and children. I truly believe this issue far exceeds racial or religious tensions in this country. I’ve attached the cost analysis referenced above.

 I look forward to discussing this further if you’re interested. In the meantime please visit this website as it has wealth of information regarding this issue:

 http://www.mediaradar.org/

He also directed me to an October 31, 2008 article from the Bluefield Daily Telegraph, titled, “MAWAD fighting stereotypes that only women are abused,” which also contained some surprising information – not only that some people and groups are fighting back, but some surprising statistics.  According to the article:

Men and Women Against Discrimination (MAWAD) formed in West Virginia to expose the untruths behind the theory that men are always the aggressors, pursue a family court system that recognizes and honors each parent’s role in a child’s upbringing and to seek “truth, justice and equality in family law.”

Along the way, organizers say they discovered there are many men out there who are just as abused as any of their female counterparts, that the court system all too often ignores their wounds and that the very systems put in place to stop domestic violence can be manipulated and twisted into another form of abuse during divorce and custody negotiations.

That’s why MAWAD members have long argued that all custody proceedings should begin with a 50-50 shared parenting plan, which may then be crafted around the family’s individual needs and situations; that the domestic violence protective order process needs to be overhauled; and that people of any gender who file false domestic violence allegations should be penalized.

The article further described MAWAD’s goals:

MAWAD’s Region IV Director Ron Foster emphasized this week that the organization never condones physical violence or emotional abuse, but only wants every person, every parent, to face equal rights and responsibilities inside a fair family court.

“Our goal is to get the garbage out of the court so you can deal with true domestic violence cases,” Foster said Wednesday.

This is exactly right.  Men are blatantly discriminated against in the custody process in West Virginia and elsewhere.  There should be a presumptively 50-50 allocation from the outset.  However, many times what happens is that the divorce or custody process begins with a 100-0 allocation due to the domestic violence protective order that is granted in many, many cases.  This is aggravated by the fact that many lawyers feel they have a duty to suggest to their client that they take out a domestic violence petition, because it puts them into such an advantageous position.  And if their client doesn’t take one out first, they other may, thereby putting them into an extremely disadvantageous position.  

However, there is hope.  And hope lies in appealing to circuit court.  In one particularly egregious case that I had, the Family Court made a finding that a female significant other was “credible” in her profession that she was “in fear” of the male significant other due to a verbal argument and thereby entered a protective order, kicking the man out of his house, out of his job, away from his kids, and into the child support poorhouse.  However, the Circuit Court overturned the order on appeal, finding that her fear must have been “reasonable,” and that no reasonable person should have been placed in fear due to the particular allegations.  Its good to know that a circuit court judge is willing to abide by the law in the face of the family courts’ capitulation to women’s groups and institutionalized discrimination against men.  My advice to others in these situations is to get a good lawyer, create a record in the family court showing the absurdity of the claim of “domestic violence,” and then appeal after the family court enters the order – which it always does.

I agree with MAWAD that it is an anti-domestic violence stance to call for reform of the domestic violence protective order procedures in West Virginia, because right now the procedures are being abused, thereby watering down the system, and allowing real domestic violence to take place.

Note: the reader also emailed me this report, titled “Analysis of Domestic Violence Costs in West Virginia and the Potential Cost of False or Unnecessary Claims,” by Benjamin Foster, Ph.D and Professor of Accountancy at the University of Louisville, which seem to be provide comprehensive coverage of the subject.

 - John H. Bryan, West Virginia Attorney

 

Right to a fair [media account of your] trial?

Tulsa criminal defense attorney Glen R. Graham posted a lengthy run-down on “protecting the rights to a fair trial against unfair media stories in Oklahoma.” He cites the Code of Professional Journalism at the Society of Professional Journalists, and notes that the aforesaid “Code” advises journalists to: (1) seek truth and report it, (2) minimize harm, (3) act independently and (4) be accountable.

But the media can certainly do harm to criminal defendants by tainting the jury pool – not that they care.

Glen comments that a good criminal attorney must seek a protective order from the court in high-profile cases to prevent the prosecutor and staff, as well as law enforcement, from releasing harmful facts which either taint the jury pool, or taint the jury itself during a prolonged trial.

While trying a multi-week and high-profile jury trial, I found myself reading the papers and watching the local TV news everyday, always getting angry at their unfair portrayal of the days’ events of the trial. It was as if they were pandering to a tough-on-crime audience. My biggest problem with it was that I had a sinking feeling that the jurors were doing the same everyday. Obviously they were instructed not to read or watch any media accounts of the trial, but there was nothing stopping them from doing so. And I couldn’t in my own mind, believe that I wouldn’t do the same had I been a juror. There is some attraction to forbidden fruit, and none of us would actually believe that we could be tainted by any such media account of what happened – especially when we experienced it ourselves.

But, even when I read or heard the media accounts, the case sounded un-winnable. The defendant sounded obviously guilty – and a guilty verdict was all but assured. My wife was in the gallery watching the testimony everyday, and when she read the newspaper, she would also get angry, stating – “that’s not true,” or “yeah, but they took the quote out of context,” or “they left out the most important part.” The fact is, that such media accounts do not accurately portray what happened at trial. And even if you were there, by reading or hearing such accounts, it tends to sway the facts in your mind towards the prosecutions case.

In that case, when the verdict came back not guilty of 1st degree murder – but guilty of lesser included 2nd degree murder, the headlines only said “guilty of murder” with no mention of the acquittal of first degree murder – a partial exoneration from what the prosecution alleged happened, and which means the difference between life in prison and possible parole in ten years (in West Virginia).

But in reality, there is not much you can do about it but complain and hope for the best. A “gag” order may help some with pretrial disclosures tainting the jury pool (with respect to prosecutors and law enforcement leaking), and indeed the Caylee Anthony case in Florida emphasizes that possibility, but in most run-of-the-mill cases, most information is eventually “public knowledge” and thus accessible to reporters. And they don’t need prosecutors or law enforcement to assist them in shining the worst possible light onto the defendant.

– John H. Bryan, West Virginia Attorney

West Virginia Criminal Justice System Deserves Credit

I have complained before about law enforcement in Florida. There are ten cops for every one person it seems, and they spend most of their time extorting money from motorists. Well I have similar complaints about the criminal justice system in Florida, and any experience with it will cause you to want to bend over and kiss the ground in West Virginia (assuming you are in West Virginia).

Orange County, which is mostly Orlando, seems to be the worst. Imagine that you are charged with a crime in Orange County, Florida. You can’t afford to hire Jose Baez, and you have no publicity to offer him, so you are appointed a public defender. A family member bails you out of jail. You wait and wait, but you never hear from your attorney. So you try and call him or her. You call the Orange County PD’s Office. You get a recording. It thanks you for calling and automatically puts you on hold. Every few minutes a digitized voice tells you how much longer your wait time is. After about 20 minutes of waiting, you get a “customer service representative” who is extremely unhelpful and rather rude. You may find out who your appointed PD is, but you never actually get to speak with him or her.

So you then decide to call the judge’s office to find out some information. But alas, you can’t find the judge’s contact info anywhere – only his bio. So you call the Clerk’s office to try and find the number to the judge’s office. But again, you are put on automatic hold. When you finally get an operator, she listens to you, says “uhhh, hold on,” and redirects you back to the beginning of the phone system as if just to put you off on another operator.

When you finally get a live voice that is willing to give you the number to the judge’s office, you call the judge’s office, and guess what? Yep, another recording. There actually is no live receptionist, just a long recording warning you that “this is a very busy office.”

While all of this is going on, your case meanwhile is charging ahead through Orange County’s automated criminal justice judiciary. You can actually plug in your info and watch your case proceed in real time – you just can’t ask anyone about it, or stop it. What if the system makes a mistake? Who can you tell? You have no access to an attorney. You can’t call the judge. You can’t speak to anyone with any sense at the Clerk’s office. Even the prosecutor won’t speak with you if your not the PD defending the person.

Contrast this with West Virginia. Indigent criminal defendants actually receive great service in rural West Virginia counties. In most counties a private attorney is appointed for the person. These private attorneys have telephone numbers, fax numbers, and usually email addresses. You can call the person, ask questions, set up a live meeting. Or, you could call the judge’s office and speak with the judge’s secretary about the status of your case or even to ask which attorney was appointed to represent you. You could call the circuit clerk’s office and speak with a very helpful person who can answer most questions about your case. Even in the few metropolitan areas of West Virginia the service is much, much better. You can get actual contact information for the public defenders, as well as the prosecutors. And attorneys, whether appointed or public defenders, actually represent you and have ethical obligations to diligently defend your case.

Maybe they would argue that they can’t help it because there are just so many people in the system. And I’m sure the same differences exist with respect to our civil justice system as compared to Florida. But whatever the reason, it makes me glad to both live and practice law in West Virginia.

– John H. Bryan, West Virginia Attorney