Arguing Before the Fourth Circuit Tomorrow
Getting ready to leave today to argue before the U.S. Court of Appeals for the Fourth Circuit.
Update:
“High Profile” Criminal Case = Poison in the Pool
This was the headline, and accompanying photograph, seen after our recent hearing in the Mineral County, WV felony prosecution of John and Tonya Cozatt. They are being prosecuted for several felonies for selling potpourri in their nutrition stores which allegedly contained “synthetic marijuana”. The newspaper just couldn’t resist labeling the products as “Bath Salts”, which of course have been all over the national news due to incidents such as the face-eating incident in Florida.
The actual article makes it clear that the case has nothing to do with “bath salts”. But if you look at the link I provided above under the photograph, you can see how they mentioned “Bath Salts” or “Salts” in three different areas surrounding the article. It’s like the media labeling every gun, regardless of what it actually is, an “AK-47″ or an “assault rifle.” In the end, it poisons the jury pool. In all of these pre-trial articles, people are seeing “bath salts, bath salts, bath salts.” And in the national media they are seeing endless stories on people on bath salts doing crazy things. Is it really necessary to sensationalize something that is innocuous as a nutrition store selling potpourri? As the article notes, law enforcement had no idea the potpourri may have contained illegal compounds prior to having it analyzed by a laboratory:
Attorney John H. Bryan, representing the Cozatts, questioned Paterline about the packaging of the substance, noting that none of the packages said it was synthetic marijuana or meant to be smoked.
Bryan also asked Paterline if he could tell when he purchased the substances if they were illegal or not, and he said he could not.
Fourth Circuit Open Carry Decision
The Fourth Circuit issued a decision bolstering our 2nd Amendment rights. The case is styled USA v. Nathaniel Black, out of the Western District of North Carolina. Essentially, a guy who was a convicted felon was open carrying a firearm. He was then seized by police, who were subsequently able to determine that he was not allowed to possess a firearm. But, was it an unconstitutional seizure since they didn’t know before they seized the guy that he was committing a crime by possessing a firearm?
The 4th Circuit held that it was unconstitutional to seize the man merely because they observed him with a holstered handgun, since they had no reason to believe that he was legally barred from possessing firearms, or that he was engaging in any other illegal activity. The importance of this decision is that it protects our 2nd Amendment rights. If it is legal for us to openly carry a handgun, then law enforcement is unable to seize us in order to determine our criminal record, harass us, etc. The case has all the goodies when it comes to search and seizure case law in the Fourth Circuit (WV, VA, NC, MD).
Excessive Force Police Shooting Settled Before Trial
Literally, on the courthouse steps. Settled for $200,000.00, paid by the Morgan County Commission. Ulysses Everett v. Seth Place and the Morgan County Commission. U.S. District Court for the Northern District of West Virginia. Federal 1983 lawsuit for excessive force and unreasonable search and seizure. It’s a tough call to choose to settle a case when you are prepared to try it before a jury, but in this particular case they had a damn good defense lawyer.
Article in The West Virginia Record.
Article in The Journal.
WV Supreme Court Justices “give attorney tough time during arguments”
An article in the West Virginia Record commented on several West Virginia Supreme Court Justices, Justices Ketchum and Davis in particular, giving an attorney a “tough time” during oral arguments:
The examination of Attorney L. during oral arguments was so one-sided that Ketchum even suggested to attorney Thomas M., who represented Pullman and Structural, not say anything that would lose him the case.
And when Tiffany D., who was arguing for Ershigs, reminded the justices that the party harmed by the sanctions was AEP and not the law firms that handled the case, Ketchum responded, “You don’t think AEP has a nice malpractice suit against their lawyers?”
This brought back memories. I was once before the WVSC for oral arguments and my opponent was given a really “tough time”. After they finished, they told him to sit down, pointed at me, and told me to stand up, it was my turn. I looked at them and said, “your honors, I think I’ll just quit while I’m ahead.” One of the same Justices said “I think that’s a good idea”. So I basically just sat down.
West Liberty University Students Complain of Excessive Force by the Charleston PD
In the Charleston Gazette today, there is an article detailing excessive force complaints by West Liberty University students against the Charleston Police Department. First sentence of the article: the mayor is speaking out to the media, defending the officers and essentially denouncing the complaints as lies. The article contains numerous statements from the police, as well as the mayor, and has statements from numerous university officials and students who witnessed the incident.
The students and university officials have every right to voice their outrage about what happened. However, the mayor was wrong to make statements to the media, only a couple of days after the incident occurred, denouncing the complaints as lies. There obviously has been no legitimate internal investigation of the complaints, and certainly no independent or unbiased investigation. In my experience, when a mayor comes out and speaks to the media, they are worried.
New Legislation After We Got a Case Dismissed?
A couple of weeks ago I posted about a criminal case in Greenbrier County in which we obtained an outright dismissal less than a week prior to the felony jury trial. It was in the news this morning that state legislators are seeking to create a new law in response to the case:
Video: police beating of a pretrial detainee
Check this video out. It is wrong on so many levels. A pretrial detainee was attacked from behind, immediately put into a chokehold, and then beaten over the course of several minutes with a blackjack. He was also tasered. I don’t even know why the guy was in jail, but it doesn’t matter. The cops were fired for excessive force. Apparently a lawsuit is pending.
Anti-gun and Ignorant West Virginia News Anchor Educated on the 2nd Amendment
This video is great. It shows the anti-gun and ignorant Bray Cary, with the State Journal, absolutely owned by Keith Morgan, of the West Virginia Citizens Defense League. Bravo!
The State Journal’s website offered this promo for the segment:
DECISION MAKERS: Bray Cary takes on the gun rights debate
On this week’s edition of The State Journal’s Decision Makers, host Bray Cary takes on the need for semi-automatic weapons with Keith Morgan with the West Virginia Citizens Defense League.
Thank you Mr. Cary for taking on our “need” for semi-automatic weapons. I hope you learned something in your embarrassing display of ignorance and arrogance. While you’re at it, are there other constitutional rights you feel that we don’t need? Do we really need the First Amendment with people like you on television?
Interesting criminal cases dismissed before trial
I had a felony criminal case going to trial tomorrow. But, an unusual thing happened. The judge dismissed the cases on Friday by granting my motion to dismiss. This is an interesting case, in a macabre way.
My client, who was an EMT, was alleged to have taken a photograph of a deceased body – a suicide victim. That photograph was alleged to have been text messaged to his wife – another EMT. Additionally, the photograph was alleged to have been shown to other individuals. When authorities found out about these allegations, they wanted to prosecute. But there was a problem: in West Virginia it is not against the law to take photographs of deceased bodies. So here were the charges:
W. Va. Code § 61-8-14 provides:
If any person unlawfully disinter or displace a dead human body, or any part of a dead human body, which shall have been placed or deposited in any vault, mausoleum, or any temporary or permanent burial place . . . he shall be guilty of a felony, and, upon conviction, shall be confined in a state correctional facility for a determinate sentence of not more than five years.
The grand jurors of the State of West Virginia, in and for the body of the county of Greenbrier, upon their oaths present that, on or about April 20, 2012, in the said county of Greenbrier, CLIENT feloniously, unlawfully and intentionally disinterred or displaced a dead human body, or any part of a dead human body, placed or deposited in any vault, mausoleum or any temporary or permanent burial place. More specifically, on or about April 20, 2012, in Greenbrier County, West Virginia, CLIENT, while working as a driver for the Funeral Home, transported the deceased body of VICTIM from Appalachian Regional Hospital in Summers County, West Virginia, to the Funeral Home in Monroe County, West Virginia. Furthermore, on said date, CLIENT, while en route as indicated above, removed the Identification Tag. Such act was against the peace and dignity of the State of West Virginia and is a violation of West Virginia Code § 61-8-14.
The obvious problem with the indictment was that, according to the statute, it did not allege a crime. We all know that the act being prosecuted is the taking of the photograph. However, in an act of legal acrobatics, they are technically prosecuting for the alleged removal of a body tag. We filed several motions to dismiss, and the motions were set for an evidentiary hearing. We subpoenaed the investigating officer, as well as the funeral home embalmer to testify.
The investigating officer testified that the embalmer told him that upon arrival at the funeral home, he observed the body still inside the client’s vehicle, and that the body tag was laying loosely on top of the body bag. However, the embalmer was the next witness. He testified that he never observed the body while it was still inside the vehicle, and that he had no recollection of the location of the body tag. Furthermore, he said that it was in the client’s job description to assist him by transporting the body inside the embalming room, and to remove the body bag, clothing, and the body tag itself (the removal of which the state was arguing was a felony offense). This is, of course, performed by first responders, as well as funeral home employees every day across the state, and it would be unfortunate to make them all felons.
The only West Virginia case law on the “disinterment” statute was State v. Duncan, and it involved a woman who dug up a murder victim from a shallow grave for the purpose of planting the body in a river so that it could be discovered by authorities. Apparently she had dumped the victim’s vehicle in the river, and then realized that if the body was not discovered it would look suspicious. So she was going to dump the body in the river so that it could be found. She apparently gave no thought to whether or not the bullet hole in the victim’s head would be at odds with her drowning set-up. Anyways, she was charged with “disinterment” since she was not the actual murderer. The WV Supreme Court held that the removal of a body from a shallow grave did qualify as a temporary or permanent burial due tot he fact that the body is actually covered with dirt, etc. The decision left no wiggle room for a prosecutor to argue that a body bag also qualifies as a temporary place of burial.
The Judge in our case discussed this case, and also discussed the fact that only next of kin have the right to “bury” somebody, and that transportation from the coroner’s office to the funeral home in a body bag, by non-family members cannot be considered “burial”. And criminal statutes are to be strictly construed. The word “burial”, at least in the dictionary, means “grave” or “tomb”. Therefore, a body bag, just isn’t a temporary place of burial – even where there is an unpopular defendant and public outcry for punishment. Even though I love to try jury trials, there is no better result than avoiding the possibility of conviction altogether with an outright dismissal of the case.
Excessive Force Lawsuit Filed Against Fayette County, WV Deputies
Media Reports:
CHARLESTON – Four Fayette County deputies are accused of beating up a disabled man and later dropping him off at his home without providing him any medical treatment.
Nicholas D. Hall, Robert V. Neal, James K. Sizemore and Dana C. Wysong are named as co-defendants in a five-count civil rights suit filed by Matthew Cole in U.S. District Court. In his complaint filed Dec. 13, Cole, 37 and an Ansted resident, alleges all four beat him without provocation when they responded to a domestic violence call to his cousin’s house two years ago, only to then have Wysong return him to his mother without either explaining his injuries or seeking treatment for them.
. . .
Handling the Police Liability Claim Seminar
On September 20 I am assisting in the presentation of the “Handling the Police Liability Claim” seminar in Charleston, WV at The Summit. This is being put on by the National Business Institute. Here is a link to the website if you are interested in attending. I can tell you that the other attorneys who are presenting are some of the best in the business and it will be worth the time and money. This is the fourth time that I have assisted in putting on a similar seminar, and some of the past attendees I have gone on to have civil rights cases with, and civil rights cases against. It is truly a mixture of plaintiff’s lawyers, defense lawyers, and others. I’ve met county commissioners, city attorneys, prosecutors, etc. I always come away with new ideas, new contacts, and of course continuing education hours.
Sawyer v. Asbury defendants asking the 4th Circuit to stop the trial
I know that many people have been following this case, so here is an update. On Monday I was ordered by the U.S. Fourth Circuit Court of Appeals to respond to a Petition for Writ of Prohibition filed by the defendants in the Sawyer v. Asbury 1983 excessive force case. The new jury trial on damages is scheduled for next week. I was given until yesterday to respond. Unless the Fourth Circuit says otherwise we are having a trial on Tuesday. Here is our response:
(Yes I did this in two days, so please excuse any mistakes)
New WV Excessive Force Lawsuit Filed – in Parkersburg Again
This week we filed yet another federal excessive force and civil rights lawsuit in Parkersburg, West Virginia. This one is a little bit different though, because city officials, as well as the City of Parkersburg, are included as defendants. See exhibit “1″ below for more information.
The Complaint:
Exhibit 1:
Media:
News and Sentinel article from June 7:
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News and Sentinel article from June 8:
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Judgment as a matter of law was just granted in Sawyer 1983 case
Unfortunately we lost at jury trial. But we just received an order from the Federal Judge overturning the jury verdict and granting judgment in our favor. There will be a new trial to determine damages. Yes!
Update: Link to newspaper article.
2nd Update: Gazette article by Zac Taylor. Some excerpts:
In his order filed Friday afternoon, Goodwin recalled the Los Angeles riots in 1991, sparked after a jury acquitted Los Angeles police officers in the beating of Rodney King despite video footage of the incident.
“The public had seen the tape. The Los Angeles riots ensued,” Goodwin wrote in the order. “Here and now, as there and then, the jury did what they thought was right but simply got it wrong.”
The judge said that law enforcement officers are constitutionally prohibited from inflicting “unnecessary and wanton pain and suffering” on detainees. He said that case law also prohibits officers from using physical force in response to chatter from detainees.
. . .
“The video clearly shows Deputy Asbury punching Mr. Sawyer in the face,” Goodwin wrote, “with the force of his blow knocking Mr. Sawyer’s face to the side.”
. . .
Asbury resumed choking Sawyer. The deputies then took Sawyer to the floor, went out of view for the camera for a short period before returning, and leaving the man on the floor, Goodwin said.
Sawyer stayed on the floor while the officers apparently went on with other tasks, Goodwin said. After a while, Sawyer managed to sit up. He was later taken to the hospital with a fractured nose.
. . .During the trial, Sawyer’s lawyer, John H. Bryan, asked the judge to make a ruling on the case based on the video. Goodwin said that he had “grave concerns” that the testimony of the officers involved contradicted the footage.
“I said in response to the motion that I was reminded of the Marx Brothers’ ‘Duck Soup’ movie, in which the heiress confronts Chico Marx dressed as Groucho and says ‘I saw’, and he replies ‘Who are you going to believe, me or your own eyes?’ ” the judge wrote.
TV News article.
The Order:
Sawyer case going to trial on 1983 excessive force claim
Today we received the Judge’s memorandum opinion and order denying the defendant’s motion for summary judgment, finding that the defendant police officer is not entitled to qualified immunity on our primary claim. This means that we are going to have a jury trial, which is scheduled for later this month.
Another win in a West Virginia civil jury trial
We just finished a civil jury trial in southern West Virginia and came through with yet another unanimous verdict in our favor. One interesting side note: there was one witness who was unavailable to appear due to health reasons, so his deposition was read to the jury. You would think this would bore them to death. But in reality it was halarious because the judge’s court reporter was playing the witness’ part and we had to act it out. Given that the guy repeatedly accosted me verbally in the deposition, it had the jury laughing much of the time.
West Virginia Excessive Force Litigation Update: Sawyer Case
We are currently litigating the defendants’ motion for summary judgment in Sawyer v. Asbury, et al. Our response contains a fairly thorough walkthrough of excessive force law for most types of excessive force claims. Of course this is tailored to the 4th Circuit as much as possible. But the law is similar throughout all of the circuits.
Two of the exhibits:
Victory in another West Virginia civil jury trial
We just completed another civil jury trial on Wednesday, and won. This was in Greenbrier County. We got everything we were asking for short of about a thousand dollars. I truly do respect the fact that we have a system where we take everyday citizens from across the board and put them in the role of the ultimate decider of factual issues – to the point where they go through your numbers and decide what’s fair and what’s not. Truly remarkable when you think about it.
Speak of the devil: Parkersburg Mayor Calls the FBI
It wasn’t a week ago that I mentioned the newspaper article regarding the indictment of a Parkersburg Police officer. Obviously I have some experience with Parkersburg. I settled a case against the Parkersburg Police Department about a month ago, and I also have one other case pending there in federal court against the county. In my last post I inquired as to when we would hear from the Parkersburg Mayor Bob Newell. Well we did hear from him. According to the latest news reports, he has now called the FBI on his own police department.
As the old saying goes, be careful what you wish for.
Parkersburg Police Officer Charged with Battery
I’m not sure what the deal with Parkersburg is, but it is in the news again. Parkersburg Police Officer Josh Densel is charged with battery for hitting one Jerry Seabolt while being booked at the holding center. When I saw this headline, I said to myself, obviously it was videotaped. According to the News and Sentinel article it was indeed caught on video.
I wonder when we are going to hear from the Parkersburg mayor. I guess he isn’t grandstanding in the media this time because there are no lawyers involved as of yet who can be blamed. The allegation has been made that the Parkersburg Mayor encourages his officers to beat individuals. This may be a good case to further develop that allegation.
Parkersburg must be an odd place. I once talked to a man who was from that area about police beatings in Parkersburg. He was an older gentleman, very conservative, very successful in life. You would think that he would place a high priority on liberty. However, it was his opinion that the police should be free to beat anyone up whom they deem as a criminal. This just blows my mind. It may be something in the water up there.
Federal Lawsuit Against Parkersburg Police Settled
The Tim Mazza lawsuit, which was pending in the U.S. District Court in the Southern District of West Virginia, is now settled. In police lawsuit cases, the settlements are not necessarily confidential. This case was settled for $100,000.00. Another case involving two of the same officers was settled a couple months prior for $70,000.00.
Link to a news story on the Mazza settlement.
Link to a news story on the Ratliff settlement.
The funny thing in this case is that from day one, in the newspapers, the mayor and police chief blamed us lawyers and tort reform in general. They publicly announced that they would not be settling this case and that they would handle the matter in court. Of course this had to be addressed once the decision to settle was made. In the News and Sentinel article announcing the settlement, they blamed the decision to settle on their insurer.
If I could get an insurer to settle a frivolous case for 100 grand just to avoid the time and expense of litigation, I wouldn’t be so picky about which cases to accept.
Federal Lawsuit Filed Against Morgan County Sheriff’s Department and Deputy
We just filed this case in federal court against the Morgan County Commission (i.e., Morgan County Sheriff’s Department) and Deputy Seth Place for the 2010 shooting of my client, Ulysses Everett. He was shot twice through the front door of his home while unarmed. There is a video.
ETA: News article from The Journal newspaper.
News coverage of high-profile criminal cases continues to disappoint
I have posted before about the danger that ignorant media coverage poses to criminal cases – especially TV news coverage. The reporting is just awful. One particular local channel brags that they are helping law enforcement clean up the criminals out of our community. In reality, they are just posting mugshots and reading law enforcement press releases.
I was in court yesterday for a pretrial hearing in a high profile southern WV case. Up to that point, the media had not appeared at the prior court hearings – most likely because they didn’t know about them. Somebody had apparently tipped them off about the hearing taking place. Some prosecutors, when they realize that their plea offer is not going to be accepted and that they are going to have to try the case, will get the media involved which effectively poisons the jury pool.
The TV news crew filmed the hearing, obviously taking careful notes about what was being said (I say that sarcastically). Instead of broadcasting the audio from the hearing, they substituted their reporter’s voice, which was completely misstating the substance of the hearing. Then, as my client and I were leaving the courtroom, they ambushed us putting cameras and microphones in our faces. The reporter asked, “what do you want to tell the victim’s family?”
The funny thing about this is that 30 minutes earlier we were all quietly sitting in the courtroom, along with other attorneys and defendants, waiting for the judge to appear. They had every opportunity to film my client at that time. They had every opportunity to request an interview or a statement, or whatever. They had every opportunity to ask questions about where the case was heading. I’m not saying they would have gotten any information from us, but they made no attempt. They are obviously not interested in the facts, just sensationalism.
Two more thoughts of the day: 1) Without video proof, police misconduct didn’t occur; 2) Sex offender registration mania is out of control
It blows my mind that this is on video, but it is. A scumball cop in Ohio abused his authority and violated the civil rights of an innocent citizen. He basically threatened to execute the guy, etc. Of course the poor guy is then prosecuted for “failure to notify” that he had a concealed weapon permit and was carrying. I heard through the grapevine that in the criminal prosecution which ensued (of the victim of course – not the cop) the prosecutor offered to dismiss the charges if the victim/defendant signed a release of liability foreclosing any possibility of a lawsuit over civil rights violations. If this is true (and I have no proof that it is), the prosecutor should be prosecuted for attempting to cover up a crime. I just found this statement from the police chief in that jurisdiction:
I want to assure our citizens that the behavior, as demonstrated in this video, is wholly unacceptable and in complete contradiction to the professional standards we demand of our officers. As such, appropriate steps were placed in motion as dictated by our standards, policies and contractual obligations. Those steps included: The officer immediately being relieved of all duty. The incident has been referred to the Internal Affairs Bureau for what will be a complete and thorough investigation. As bad as the video indicates our officer’s actions were, there is a due process procedure to follow. That process is designed in the best interest of both our employees and the citizens at large. That process will be followed in this case as in all others. Anyone shown to be in violation of our rules and regulations will be help appropriately responsible as dictated by all the facts. ~Chief Dean McKimm
The 800 pound gorilla in the room is this: if the video did not exist, nobody would believe the victim. And it blows my mind that the video was recovered. By the way, if you watch the video, take note of the illegal search of the backseat of the car which happens almost immediately after the stop. This sort of garbage happens all the time. After the fact the cops will claim to have received consent to search the vehicle. There was no consent, and there was no probable cause to search.
Secondly, there is a story out today about 14 year old boys being required to register as sex offenders due to a high school prank. It’s time to tell the whining hippy women and the “new-castrati” that enough is enough with this sex offender garbage. Of course it has its place with real sex offenders. But this has gotten out of control. I’m tired of seeing this ruin the lives of good young people. The sex offender laws are too broad. Then once we label good people as “sex offenders”, it ruins their lives. Not only this, but it waters down the real purpose of having registered sex offenders. So what’s the point?
If you were wondering what the law is in West Virginia, it is basically this: if there is any conviction of an individual and the presiding judge makes a finding that the offense was “sexually motivated” in any way, that person then becomes a registered sex offender. It doesn’t have to be an actual sex offense charge.
Thoughts from the news: Casey Anthony and NC Troopers
Yes, once again it has been sometime since I have posted. I just don’t have the time that I used to to comment on various things. That being said, there are a few different things which have popped up in the news that I just can’t resist.
1. Casey Anthony. Good for her attorney calling out all of the talking head lawyers who gave their b.s. opinions on the case throughout the last several years, and especially during the last few days of the trial. He also gave the media “the bird”. I was really getting aggravated with all of the “former prosecutor”[s] running their mouth on every cable channel about how she was going to be convicted of first degree murder and about how good the prosecutors were. They are pretty much all the same. They are mostly blonde (sometimes brunette) females. Almost none of them could be considered unattractive or overweight. They have loud, big, mouths and holier-than-thou attitudes – especially if other females/children are somehow involved in the subject on which they are running their mouths. Fox News / CNN have determined that they are qualified to bestow their opinions onto us due to their looks, and due to the fact that they used to be a “prosecutor.” Then there is Nancy Grace. She is the queen of the former prosecutors. She actually does have experience. She is a defendant’s worst nightmare: a bitter loud-mouthed prosecutor who is willing to do unethical things in order to win.
It was courageous for these 12 jurors to acquit Casey Anthony despite the all-knowing public and media having already deemed her guilty. How dare politicians/pundits condemn the jurors for their decision. I have said it before and I will say it again: it is the “law and order” people in our midst who will be our ruination. They are obsessed with their own personal safety. The same people who claim to stand for smaller government and more individual freedom are often the first ones to condemn jurors for upholding our constitution. The reason is because they are cowards: they are afraid for their own safety and so they worship law enforcement. They are also playing politics and know that the majority of voters / people who watch the news are older citizens, who are also obsessed with their own safety. We need less laws, not more.
I could care less about Casey Anthony. I believe she was involved in her daughter’s death. However, it was very satisfying to see the prosecutor, Linda Drane Burdick, who was so pompous, arrogant and self righteous in her demeanor be brought so low by the loss of the century.
2. The North Carolina troopers who arrested the trial lawyer’s wife. Being a Tarheel, I have been watching what has been going on with the NC troopers and the trial lawyer’s wife. Again, it is sickening that politicians and supposed proponents of freedom and smaller government support police-state behavior. Even though NC, like VA, is a conservative state politically and socially, it is a police-state when it comes to law enforcement. For some crazy reason, conservative voters support massive government when it comes to Criminal Law – including its creation, enforcement and prosecution. Again, I believe they are either older people obsessed with their safety, or they are cowards (they place fear of personal safety over our country’s liberty), or they are obsessed with being politically correct (it is generally politically popular, especially where there are senior citizen voters, to be “tough on crime”.
Anyways, this trooper pulls over a relatively attractive woman driving a Lexus SUV. Big surprise. I have discussed before the intense security threat posed by attractive women driving expensive SUVs. The trooper, who of course sports the obligatory military-esque hairdo, asks the woman if she was drinking. She had a sip of wine at some banquet she was driving home from. The trooper then makes her get out of the car and asks her to blow in the portable BAC device. She refuses and instead opts to be taken to the real breathalyzer machine (they used to use “intoxalyzer 5000′s” in NC). In NC, you are entitled to call a witness for the test and the witness has 30 minutes to get there. Naturally she calls her lawyer husband. The husband shows up and she blows two 0.00′s. Obviously she is not intoxicated. There was no other evidence of intoxication.
North Carolina is a DWI state (or at least it used to be when I prosecuted DWI’s there), meaning that you couldn’t convict somebody of DWI based on the BAC alone. The officer would have to testify to erratic driving and/or the person failing field sobriety tests. You are legally allowed to be above the BAC of 0.08 if it was not proven that you were in fact intoxicated. At this point, since the lawyer husband is present and is angry at the kidnapping of his wife, the trooper refuses to release the woman, and instead is arrests her and keeps her in handcuffs.
So in essence, a private American citizen was taken in handcuffs out of her car and incarcerated/kidnapped. But that’s okay right? According to a local magistrate, and according to the cops, that is just standard procedure. He was just following procedure. These people ought to be run off of the taxpayer payrolls. How dare they tell the citizens that it is their procedure to arrest somebody with no probable cause and hold them against their will. Impeachment is also a procedure. Maybe the magistrate, and the storm trooper, should be prosecuted for kidnapping and battery. We can follow procedure to the letter.
The storm trooper then allows the woman’s husband to follow him to the magistrate’s office so that she could be arraigned and post bond, etc. While following the storm trooper the husband gets pulled over by another storm trooper – for speeding (despite the fact that he was following another trooper). The troopers report stated that he did not have any communication with the other trooper and that there was no set-up involved. First of all, anyone who would believe that is a complete fool. And anyone who would deny that it was a set-up is a complete liar. Since then, text messages have been released from between the officers which show that there was communication. Not only that, but the officers were discussing the lawyer and his wife and saying things like “f**k him” and “f**k her”. The second trooper, who pulled over the husband, sent the following text message to his trooper buddy, who was transporting the wife:
Trooper Smith then wrote at 12:31 a.m.: “TELL HIM IF HE WANTS TO COP AN ATTITUDE TO FEEL FREE AND COME BACK AND ILL S—– HIM THAT SPEED.”
How dare these troopers use their sacred position of trust to violate the liberties of law-abiding citizens of this country. Nevertheless, ignorant kool-aid drinker NC state senator Thom Goolsby decided to run his mouth in the media and support the troopers. These are the dangerous ones. The politicians who are so worried about keeping their political jobs that they are willing to throw innocent citizens under the bus. This guy is willing to allow troopers to kidnap citizens under color of law just to spite a trial lawyer and his wife. He needs to be run out of office.
Not only should these delta-force wannabes be fired, they should be criminally prosecuted for kidnapping and battery. If they are allowed to keep their jobs, it is telling every other crooked cop out there that it is okay to abuse their position of trust in order to spite somebody.
You never know what will happen in a civil jury trial.
It has obviously been a long while since I have posted. It seems that this time of year is the busiest, since everything rebounds from winter hibernation. I recently tried two separate tough civil jury trials. We won the first one, receiving a “plaintiff’s verdict”. It was a case involving breach of a contract to convey corporate stock. The case was close, but the jury ruled in our favor. The second case was an extremely tough car accident injury case. My client was hit by a power truck while attempting to make a U turn on an interstate. The defendant was found negligent by the jury, but my client was also found guilty of comparative negligence. In West Virginia, if the plaintiff is 50% or more comparatively negligent in the eyes of the jury, there can be no recovery. We were close. It was a tough loss. This was a Mercer County case. I thoroughly enjoyed the new “elmo” trial presentation system which was recently installed by the WV Supreme Court.
I felt more confident at the conclusion of the trial in the second case than I did for the first. Yet we won the first and lost the second. It just goes to show that you never know what will happen in a trial – especially in a civil trial.
West Virginia police oversight bill
There is currently a police oversight bill heading through the West Virginia State Senate, set for its second reading in the senate on Monday. The Charleston Gazette published an article confirming that both the West Virginia Troopers’ Association and the West Virginia Sheriffs’ Association are backing the bill. It essentially provides that:
The revised bill requires officers who move from one department to another to sign a waiver allowing the subcommittee to review their personnel file with that previous department before reauthorizing their police officer certification. It also requires the subcommittee to keep the database of all certified officers, which would be available to all departments.
Both versions of the bill give the Law Enforcement Professional Standards Subcommittee — formerly known as the Law Enforcement Training Subcommittee — subpoena powers to investigate problem officers that come to their attention.
See Charleston Gazette article. I think this would be a great tool to help weed out the bad officers. We all know who the municipalities are who attract bad officers. These municipalities complaint that it costs too much to send a new officer for the proper training and certification. Its easier to just hire an officer who was fired elsewhere and who is willing to work for minimal pay. ’Tis better to have no officers at all than to have untrustworthy ones. Period.
Anti Texting and Driving Ban Legislation
A form of the proposed anti texting and driving ban passed the West Virginia House of Delegates. A few days ago I posted about the West Virginia texting and driving laws on the West Virginia Car Accident Law Blog, noting that this legislation was coming up for a vote. It still has to pass the senate. It only allows for officers to cite motorists for texting and driving as a “secondary” offense rather than a “primary” offense. This means that cops cannot pull someone over just because they see someone texting and driving. There has to be some primary infraction or other reason to make the stop. Only then can the person be ticketed for texting and driving.
Honestly, even if it was a primary offense under the statute, it wouldn’t stop anybody. Who is going to be texting with a police cruiser right next to them? Most idiots who do this aren’t that stupid. The best enforcement for the texting and driving problem is civil trial attorneys who sue persons who injure others due to texting and driving. We can easily find out if someone had been texting at the time of, or immediately before, the collision.
See Charleston Gazette article today on the legislation.
As law enforcement unionization increases, so do your taxes
Growing up in Florida, I can attest to the sheer number of law enforcement officers (as well as full-time firemen), many of whom make unbelievable salaries and benefits. Of course these benefits are not supported by the market, they are the product of unionization. This applies to both liberal/decaying areas such as new england, as well as conservative/wealthy areas such as the coasts of Florida. Liberal areas are pro-big-government and pro-unions, which results in large pools of government employees, including in law enforcement. Wealthy/conservative areas generally have a large population of older citizens, who obsess about how many police officers are patrolling the streets. The results, based upon my observances, is a bunch of over-paid government employees who have nothing better to do than to obsess over catching you speeding. And if you are a decent-looking woman, there has to be enough back-up available to at least have three cruisers on the scene.
West Virginia has its problems, but this generally is not one of them. State troopers do get decent pay. However, most county or municipal cops get paid very, very little. I think all of our firefighters are volunteers. We should keep it this way. We should let the market dictate pay. There obviously is no shortage of qualified persons wanting to be in law enforcement. Why raise our taxes for no reason? Or maybe we should pay the better cops more, and fire the bad ones.
There was an article in the San Francisco Examiner to the effect that over 1,000 cops in one New York county are being paid over $150,000.00 per year:
According to this report from Newsday, a state oversight board is seizing control of Nassau County’s finances “in large part because County Executive Edward Mangano was unable to get millions of dollars in labor givebacks to balance his $2.6-billion budget.”
Of the county’s 2,400 police officers, 1,103 were paid in excess of $150,000 a year. Clearly, that’s not sustainable. And just last week Gov. Chris Christie, R-N.J., highlighted the case of Parsippany, N.J. where the town had to take out a bond to pay for the retirements of four police officers. Union rules allow police to be paid for any unused sick leave on retirement, and the four cops had accumulated $900,000 worth.
For years, public safety employee unions have extracted major salary and benefit concessions through implicit threat — striking police leave communities vulnerable. But now we’ve reached a point where communities around the country are quite literally out of money. Either the unions start making concessions, or start losing jobs.
Beware, it can easily happen here in West Virginia. It would be nice to have everything that everybody wants, but sometimes you just can’t afford to have everything that you think you need. We have been getting along just fine. Of course we have our problems, but at least we don’t have the problems that these governments in New York and California do.
Two Requirements for Concealed Carry in West Virginia
For concealed weapon carry permit holders in West Virginia, there are two very important items of documentation that you must have on you at all times:
(1) your West Virginia concealed pistol/revolver license, which of course is legally required to be on your person any time you are carrying a concealed weapon; and
(2) your attorney’s business card, in case you get arrested by a law enforcement officer regarding your firearm, or in case, God forbid, you are forced to use your firearm in self defense.
Step one is legally carrying the weapon. Its a whole separate ordeal explaining the situation of having to use deadly force to defend yourself or others to law enforcement and later, the prosecuting attorney. You should leave it to a professional. Have your attorney’s card laminated and keep it in your wallet along with your CCW permit card.
Of course, my business cards already come pre-laminated in a glossy finish and will stand the test of time in your wallet. If you want an attorney who knows guns and the many facets of self defense and gun laws in West Virginia, and who also has a proven track record of successfully defending gun charges, both through obtaining dismissals from judges and prosecutors and from obtaining acquittals from juries, call me and I will send you several of my cards free and with no questions or obligations.
Remember: saying “with all due respect sir, I would like to have my attorney here before I answer questions – I will call him right now” cannot be used against you. Even if they arrest you, your innocence can be sorted out after the fact. Make sure that your attorney gives you some way of contacting him or her after hours if an emergency arises. You have to use your brain.
You may want to say (especially if there is no attorney handy) something to officers, depending on the circumstances, so that they understand that it is a self defense situation. ”Officer, this was self defense, I was in fear for my life, I have a concealed carry permit. That is his gun over there lying next to his body. This man over there was a witness”. If an officer is going to support you, he will not push you to answer questions beyond that. If he is not going to support you, then there is no point in talking with him anyways.
Mayors of decaying cities are liberal, know-it-all, hypocrites
There was an article in the Charleston Gazette, a few days ago, “Lawsuit challenges W.Va. city gun laws” which explained that “a pro-gun lobbying group” filed a lawsuit (or lawsuits rather?) to overturn gun control laws in four West Virginia “cities”: Charleston, South Charleston, Dunbar and Martinsburg. The lawsuit was filed by the West Virginia Citizens Defense League and challenges Charleston’s limits on the number of handguns a person can buy in a month, as well as the city’s prohibition on possessing firearms on city property, such as in city parking garages.
Charleston, WV Mayor, Danny Jones, was quoted in the story:
Charleston Mayor Danny Jones promised to fight the lawsuit.
. . .
Jones noted the lawsuit was filed in the Charleston federal courthouse where firearms are prohibited.
“All we want is what they have. We want to be able to control our own property,” Jones said. “I don’t know how far these people want to go.”
Jones is one of these know-it-all hypocrite slum lords, who has a police force to protect him, and who denies his subjects, or anyone else venturing into his slum-dom, who are actually law abiding citizens, from possessing legally owned and carried concealed weapons. So if you go into a city-owned parking garage in Charleston, WV, by law you are not allowed to have the ability to protect yourself. Of course in a decaying city full of drug addicts, who would need a gun to protect themselves in a darkly-lit parking garage? Jones doesn’t trust us law abiding citizens to abide by the law.
Interestingly, there was an article in the Charleston Gazette today, that Mayor Danny Jones’ son was arrested for possession of heroin within the slum-dom. This was the statement from Jones’ “mayoral assistant”:
Mayor Jones had no comment about his son’s arrest. Rob Blackstone, mayoral assistant, said, “It is what it is. He’s 21 years old.”
There you have it. Law abiding gun owners just need to stay out of Charleston. Because we all know there is nothing stopping the criminals and drug addicts from obtaining and possessing guns on “city property”. Probably the first place they go to rob somebody will be the city parking garages.
I don’t think these mayors are stupid. They don’t actually believe that their gun control laws will protect people. They have a liberal and/or ignorant majority of voters, who have an ideological hatred towards guns and law-abiding gun owners, whom they see as right-wing fanatics. This fits their agenda. Moreover, the more freedom they take away from their subjects, the more power they gain. Their subjects are made to depend on their protection.
Maybe Danny Jones should worry about the crime/slum/drug problem in his city, instead of wasting taxpayer money promising to fight lawsuits and trying to “control [taxpayer] property”. He obviously has no control, including over his own son.
United Bank VP we sued to plead guilty in federal court
The State Journal ran a story today entitled “Guilty Pleas Expected in Development Scam” announcing that a former United Bank Vice President and loan officer who we sued as a part of our Walnut Springs Mountain Reserve civil fraud case, “R. Leon Cooper” has agreed to plead guilty to federal crimes as part of a plea deal.
The conduct supporting the plea has to do with fraud which occurred in the development of the “Lamplighter” subdivision in Lewisburg, WV. The story also noted that:
As part of the guilty pleas, both Carter and Cooper agreed to cooperate with the U.S. Attorney’s office on further investigations. Both Carter and Cooper also will forfeit nearly $2 million in valued property.
Carter is scheduled to enter his guilty plea Jan. 6 in Beckley. Cooper’s plea has been scheduled for Jan. 13 in Beckley.
Cooper was the former Fayette Planning Commission president involved in the failed River Ridge development in Fayetteville.
That development crumbled when sewer plans for the development were prematurely approved so loans Cooper facilitated through United Bank could be approved for property purchasers, according to lawsuits filed concerning that development.
Cooper also has been named in a civil lawsuit filed in the failed Walnut Springs development in Monroe County.
The Monroe County lawsuit is pending.
There also was a story in the Charleston Gazette yesterday that United Bank paid $15,000,000.00 in fraud settlements in 2009 alone. And we wonder why the economy collapsed…. The Gazette also ran a story on Friday on the Cooper fraud. The banks have been running absolutely wild. We are still sorting out how many innocent U.S. citizens were harmed due to bank fraud in the mid to late 2000′s. It is a big deal for these two West Virginia publications to start reporting on United Bank’s dirty laundry. For those of you who don’t know, United Bank basically runs the state of West Virginia. It is the “state’s largest bank” and many, many people and institutions in West Virginia are afraid of it. But once the cat’s out of the bag, it’s out. I suspect we will read more soon.
Ok, here’s more: A Virginia businessman, Osama M. El-Atari, 31, pled guilty to bank fraud totaling $53,000,000 in fraudulent loans. Guess who else was involved? That’s right, United Bank. A United Bank Vice President and loan officer (same general position as Cooper), Sissaye Gezachew, 32, was arrested and pled guilty to bank fraud for his involvement with El-Atari. See Washington Post article and FBI press release. Banks do not exactly advertise these incidents, or even explain them, to their customers or shareholders. In fact, they don’t even let their mortgagees who have been victims of fraud know about the fraud. Rather, they pretend it never happened and demand their money. Then they foreclose and threaten to garnish wages. Of course you would still be safer with United Bank than dealing with United Bank of Africa.
The Federal Officer Removal Statute 28 U.S.C. 1442(a)(1)
Here is a recent filing in the United States District Court for the Southern District of West Virginia. It has to be one of the oddest things I have ever done in the realm of criminal defense. Most lawyers know that a civil case in state court can be removed by the defendant(s) in certain circumstances. In fact, most plaintiffs lawyers in West Virginia, usually myself included, do everything they can to avoid such a scenario. But did you know that in certain instances, state criminal prosecutions can be removed to federal court? Well it’s true. Similar to being a plaintiff in the 4th Circuit, usually it would be a really bad idea to handle a criminal case in federal court rather than in state court. Defendants almost always get hammered in federal criminal prosecutions. But conceivably there are situations where you do want to be in federal court – especially one in which state court officials (e.g., prosecutors/magistrate judges) have formed a lynch mob and are going after your client.
28 U.S.C. 1442(a)(1) is known as the federal officer removal statute, and allows state court cases of almost any sort to be removed (forcibly) to federal court. It is usually used in civil cases. For instance, if you were to try to sue an FBI agent in state court, it would quickly make its way to federal court using this removal statute, and it would be there about 5 seconds before being dismissed. But 1442(a)(1) also allows for state criminal prosecutions to be removed. It has rarely been used, mostly because scenarios which would invoke it rarely occur. It requires that a federal officer be charged with a crime in state court, and that he or she have a colorable federal defense (usually federal immunity) to the charge.
In our scenario, my client does indeed have a colorable federal defense – LEOSA (Law Enforcement Officers Safety Act). Passed in 2004, it allows current or required qualified law enforcement officers to carry concealed weapons notwithstanding any state or local laws to the contrary. My client is a federal law enforcement officer and was charged with carrying a concealed weapon. The arresting state cop and the state prosecutors have claimed complete ignorance of the federal law. And since it is a misdemeanor, it has been in the West Virginia magistrate court system, which in this case at least, equaled complete ignorance and disregard for federal law. Using 1442(a)(1) I was able to file a Notice of Removal in federal court, which barring a remand by the federal judge, will completely divest the state courts from jurisdiction over the prosecution.
Between the civil lawsuit we filed over this, and the protracted criminal litigation (which is on its way to a state record for volume of misdemeanor litigation) it is mind numbing that state prosecutors and law enforcement would dedicate so many resources and expenses in order to secure a misdemeanor conviction on one person. Beware, cross your local authorities and you could be next.
Media coverage of criminal cases in WV and mercy for good people
Several years ago, and again recently, I discussed my frustration at the lack of impartial coverage of high profile criminal cases in West Virginia by TV news media. If you watch our local news around here you will notice two things: lots of mugshots and lots of interviews of police officers. That’s just about all you will see. Of course there are two sides to every story, but you will never, never hear them. You will only hear the law enforcement side.
Recently I became involved in just such a case. The media got involved and started broadcasting stories that just did not portray the situation accurately. They were causing a big stink and provoking people to call the prosecutor and law enforcement to demand that the book be thrown at my client.
The client is a good person; well-liked by just about everybody who knows him. He has never been in trouble before. He was studying to become a police officer. In fact, he was days away from getting a job as a police officer when the news station decided to ruin his life. He was volunteering at a local school with the marching band. He has a concealed weapon permit and had a pistol in his truck. His truck broke down on school property and he had to hitch a ride home with a friend. So he made the mistake of taking the pistol out of his truck and taking it with him. He made the further mistake of showing his friend the pistol as he was taking it out.
Subsequently, the principal was apparently reviewing surveillance footage of the school grounds, and observed the gun. Band director gets fired for having an unauthorized volunteer. The media picks up on it, and eventually people think we have just narrowly-avoided a Columbine incident. A crazy man wielding a gun at a local school. Somebody has to pay.
I encountered the TV reporter in the courthouse. She informed me that she had uncovered the identity of the gun-wielding volunteer and was going to run a story on it that evening. I then offered to give an interview to try and set the record straight. So I did, and I explained the accurate circumstances, on video. Of course when the story was run that night there was a lengthy interview of a sheriff’s deputy explaining that my client had committed a felony and they were going to charge him for it. They also broadcasted his name, age, and the location of his residence. And that was it. Nothing else. No explanation from me. They chose not to include any of my interview. Of course I wasn’t surprised. That is how it usually goes. When your client is charged they show his mugshot and broadcast his name and other information. When he is acquitted it goes unmentioned.
The reason is this: if viewers were to hear my explanation, they would say, “Oh, what’s the big deal about that? They are going to charge this kid with a felony and ruin his life over that?” The story would lose its sensationalism.
Certainly the argument could be made that law enforcement and the prosecutor have no choice. The guy was caught on video possessing a firearm (unloaded) on school property. There is a statute in West Virginia that makes it a felony, with a 2 to 10 prison sentence and no opportunity at probation or parole for possessing a gun on school property, whether or not unloaded, or on any property upon which a school function is occurring. To contrast that with other crimes, that is the same penalty for wanton endangerment with a firearm, which is like shooting a gun at somebody and missing. Brandishing a firearm, which is like pointing a gun at somebody but not firing, is only a misdemeanor with a maximum sentence of one year. So to a certain extent we can blame the legislature for creating an overbroad and unfair law. And I do blame them. Most of them are too cowardly to stand up for common sense and freedom. Attach a school or domestic violence to any vice or allegation of misconduct, and you end up with a capital crime. But I think there is also a place for mercy.
The police do not have to charge, and the prosecutor does not have to prosecute. They have that discretion notwithstanding the legislature. Not every crime has to be punished – nor should it be. Many people would disagree with that. But let those persons throw the first stones who have not themselves committed a crime without being caught or without punishment. In the end it is up to people like me to be the voice of reason to a jury. We are the last and best hope and saving the lives of good people like this young man. It is a heavy burden. You will see things differently when it is your son or daughter, who is a good person, but who has made some sort of mistake and ends up on the receiving end of the criminal justice system. It’s not hard to do. There are so many criminal laws that I do not know them all. Do you think this kid thought that he may have been committing a felony when he took the gun out of his truck? Of course not, yet we are ruining his life as a result. There is a place for mercy and compassion in the court system. But no legislator, prosecutor, sheriff, or judge gets elected by promising mercy and compassion.
Charleston Gazette v. WVSP
The Charleston Gazette filed a FOIA lawsuit against the West Virginia State Police yesterday in Kanawha County Circuit Court, seeking disciplinary information and records. They also published a story detailing the lawsuit, which contained a shocking paragraph (at least to me):
According to the six-page public report produced by the professional standards section in 2009, 13 troopers were dismissed that year based on sustained allegations, up from 3 the previous year. An additional 19 resigned prior to discipline. There were a total of 112 incidents where action was taken in 2009, according to the report.
Wow. 32 troopers kicked to the curb in one year? That is bad. And 19 resigned prior to discipline. That means that they are now working at a municipal or county law enforcement agency, and that the unwitting citizens of that jurisdiction have no idea of what misconduct their new officer had previously been constructively terminated for. It’s not easy to get fired as a law enforcement officer. For instance, look at the Travis Barker case, which was cited in the Gazette article today. We sued him for allegedly arresting the guy who he thought was having an affair with his wife, for a charge that was not illegal, and then beating him while handcuffed to the floor with no other troopers or witnesses present. And this is not the first accusation against him. Yet he still has the authority, as far as I know, to pull people over and shoot them if necessary.
So these 32 individuals must have really misbehaved.
Reporter Gary Harki provided more information on the Gazette’s blog, Sustained Outrage, about the lawsuit and about allegations against the WVSP. It also includes a copy of the lawsuit filed yesterday. Harki also provides links to some recent stories detailing the WVSP’s recent issues with disclosure:
These three stories from July do a good job of telling the other recent accusations:
W.Va. State Police stay mum on inquiries
And if this is the WVSP, imagine the statistics on county and municipal departments.
Federal lawsuit against Wood County Sheriff’s Department in the news
In the Charleston Gazette this morning is an article on a federal lawsuit I filed yesterday on behalf of Brian Sawyer, replete with a video of his beating at the hands of a Wood County, WV deputy. This is an excessive force case which is currently the subject of an FBI investigation, as the article confirms.
This incident would have coasted under the radar if it were not for Sgt. Dave Westfall of the Wood County Sheriff’s Department, who blew the whistle on what happened, and saved the surveillance video of the beating, providing it to the FBI after his superior allegedly told him to not throw his fellow deputy “under the bus.” Westfall is a veteran of the U.S. Special Forces, with a distinguished career as a law enforcement officer. He is also a certified self defense instructor and use of force instructor. It goes to show that real men do not need to use their badge to beat people up. Real men use restraint and act with a clear head. Real men do what is right and would never cover up a civil rights violation just because he can.
Unfortunately, now Sgt. Westfall is defending himself against the Wood County Sheriff’s Department. He alleges that he was caught by his superiors showing this video to two FBI agents secretly at a Cracker Barrel restaurant, and now they are seeking to discipline him for unrelated allegations. And we wonder why other officers do not come forward to report misconduct . . . . Their choice is to have a long, quiet career with no bumps in the road by staying quiet, or to do what is right and face persecution.
Now we all need to stand behind Sgt. Westfall and keep him from getting thrown under the bus for having integrity.
This is a good lesson on what the proper role of the federal government is. I was watching the Maynard / Rahall debate last night, and there was a lot of discussion on the proper role of the federal government. There are a couple of things that we do need the federal government for: raising, maintaining, and operating a military; and stepping in to local situations where there is questionable accountability and integrity within state or local government. Thank God we live in a country where we can go to the FBI if we believe that there has been a coverup or conspiracy among law enforcement at the state or local level. Otherwise, what could we do?
UPDATE: (10/28/10)
Other Media Links for this case:
WTAP video (Note: during the video the anchor says something about Sawyer pleading guilty to assault on an officer, and at the exact time she says that you see Sawyer in the background being choked and held up off his feet. Obviously a vicious assault against that officer. Of course when he took the plea offer, he would have had no idea about the video, and without a video it’s like talking to a brick wall when you tell people you were beaten up. That’s the usual way things work. You get beaten up, and they charge you with assault. Then they give you a good deal on the jail sentence if you just plead to assaulting an officer.)
Statement released by Sheriff Jeff Sandy:
“On October 26th, 2010, a federal law suit was filed concerning alleged “excessive force” violations being committed by a former employee of the Wood County Sheriff’s Office. I assure the public that the Wood County Sheriff’s Office will continue to cooperate fully. As Sheriff of Wood County, I am responsible for all events that have occurred at the Wood County Sheriff’s Office since taking office. Under my watch the Sheriff’s office has not and will not tolerate illegal and unethical behavior by any employee that has taken the oath of office. The Wood County Sheriff’s Office has some great public servants, and this alleged incident should not reflect upon the entire organization. In ending, as Sheriff, I welcome any and all investigations by federal and state investigators, because after their investigation is completed it will show an unbiased detail of the events.”
Note: probably not coincidentally, I also have another case currently pending in federal court for a police beating which occurred in Parkersburg – Tim Mazza. At least this time officials have not been blaming me or tort reform….
New Rules for West Virginia Appeals and Sex Offense Convictions
As explained by the Charleston Gazette this morning, new rules have been adopted for West Virginia appeals to the WV Supreme Court of Appeals, which will become effective in December of this year. This is a significant change for criminal defense in West Virginia. The Court will still be able to deny a criminal defendant’s appeal. However, from that point forward, the Court will have to give a reason for that denial.
Since 2004, it has been a concern of mine that persons convicted of sex crimes in West Virginia essentially will have no possibility of appeal. The problem is that the justices must campaign for election or reelection. In 2004 a justice lost his bid for reelection, mostly due to negative campaign advertising alleging that he freed a convicted sex offender (despite the fact that it was the correct decision legally – and despite the fact that there was obviously a majority consensus in that particular case since no justice can act alone). After that, what justice is going to want to reverse a conviction for any sex offense, regardless of what the correct legal decision is?
I’m not trying to protect child molesters. The fact is that “sex crimes” have turned into Salem witch hunts. The average person would be stunned at how many “sex crimes” there are. The small minority involve conduct which the average person would deem to be child molestation. The end result is that we have watered down the sex offender registry with individuals about whom people are generally not concerned. So when you actually have a child molester, it basically goes under the radar.
The average person would also be staggered at the volume of legislation and bureaucracy dealing with sex offender registration. It has taken over West Virginia’s criminal code, and is beginning to take over parole in West Virginia. Now, sex offenders will almost always qualify for “extended supervision” by WV parole officers. So if you are convicted of a sex offense, at the behest of the prosecutor, even after you serve your time you can be supervised (basically be on probation) for decades – in addition to already being required to register as a sex offender for life (the rules and intricacies of which would take about a week to explain). You can be forced to take polygraphs and wear an ankle bracelet.
We should be provided an accounting of how much taxpayer money is spent on the sex offender system. I bet it would be staggering. I would also like to know how many children it has saved from harm. Probably very few. Its like making schools “gun free” zones. It does nothing to accomplish its alleged purpose, and actually ends up doing more harm than good. Teachers or adult students cannot be armed to defend themselves and others. Likewise, parents will have no idea a real sex offender is in their neighborhood – because there are so damn many “sex offenders” that the truly dangerous ones get lost in the crowd.
Good people, who pose no threat to the public, can and have gotten caught up in this witch hunt. Politicians, nor judges, are willing to take a step back. This is a mob mentality. The “sex offender” brand rules – just like a witch. If you step into the way of one of these prosecutions, you are in support of child molesters – you are a witch, and you lose your seat, or lose your bench.
Of course, we don’t need career politicians anyways. Maybe judges, but not politicians. At least now there is a right to be told why a criminal appeal is being denied. Next, we need reform. Just like taxes should be cut, laws should be cut. Let’s stick to the basics. When we make everything a crime, we give corrupt or power hungry prosecutors the power to charge anyone for anything at anytime. Never a good idea. Some are just bad apples. The scary thing is, that bad prosecutors have a common trait: their will to win and avoid embarrassment is greater than their respect for justice. They will convict an innocent person to save face, or even to achieve personal retribution or revenge. And the ignorant electorate has no idea. They hear a radio ad touting how “tough on crime” the prosecutor is, and they vote for him. Elections are not won by promising to ease up on criminal prosecutions, or by promising leniency or mercy. Again, it’s a mob mentality. The WV Supreme Court should be completely insulated from the mob. Hopefully that will be a future reform.
A WV Criminal Defense Attorney’s advice on how not to handle a traffic stop
Sometimes I give out free advice, such as my lecture on keeping one’s mouth shut. Here is another. At some point in your life you are going to be pulled over by a cop who treats you like crap. He will either be really young, or will be older and act like a Marine drill sergeant. He will talk down to you. He will talk really loudly. He may ask you personal questions. You may feel provoked to run your mouth, or to insert a snide comment.
Although he may deserve it, do not say what you want to say. Do not ask for his badge number (you can find that out after the fact if necessary – his identity will almost never be a mystery). Do not ask for a supervisor. Just say, “yes sir” and be polite and cooperative – even if he is not. And then drive off as soon as he lets you.
Chances are, if he is being a jerk to you, he is capable of arresting you illegally. They can arrest you for obstruction and/or resisting arrest merely by claiming that you refused to obey his lawful orders. Then it is up to you after-the-fact to try and fight your way out of it. Worse yet, maybe he says you took a swing at him. Then you get charged with assault or battery on an officer. It’s your word versus his, and his dash cam was conveniently inoperable. At the very best you end up having to pay a criminal defense attorney to get you out of the mess, and a year later, get it expunged. At worse, you end up at trial, and potentially get convicted. Then maybe you appeal, etc. It all could have been avoided.
Of course, if you have already done this and now have to pay huge sums of money to a West Virginia criminal defense attorney, it might as well be me (1-888-54-JBLAW – available statewide [shameless plug]).
John H. Bryan, Attorney at Law
Have law license, will travel.
John H. Bryan is a prominent West Virginia criminal defense lawyer who not only defends people in criminal courtrooms statewide, but also is one of the top civil rights attorneys in West Virginia, frequently suing police departments and the State for misconduct. He and his law firm also have a successful personal injury litigation practice and frequently handle high profile cases.
Email John: jhb@johnbryanlaw.com
“We may affirm absolutely that nothing great in the world has been accomplished without passion.” – Hegel.
WANTED TO BUY: antique firearms and related items, as well as Native American trade items and artifacts.
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