West Virginia Criminal Law Blog

In Greenbrier County:

For Prosecuting Attorney, incumbent Kevin Hanson lost big, and at the top of the Democratic ticket for the general election will be Martha Fleshman, who was a complete dark horse in the race. According to the Register-Herald article linked below, she spent only about $1,400 on the race — not including the $992 filing fee. She will face fellow attorney Pat Via, who by the way is an all-around good guy.

For Circuit Judge, incumbent Judge Pomponio emerged victorious over Lewisburg attorney Steve Hunter. He will face Lewisburg attorney (and State Senator) Jesse Guills in the general election.

See the Greenbrier County results here.

UPDATE: The Register-Herald published an article Thursday regarding the county prosecutor race in Greenbrier County, which you can read here.

In Monroe County:

For Prosecuting Attorney, incumbent H. Rod Mohler also lost big - to challenger Justin St. Clair who is a Monroe County Attorney and also an all-around good guy. This was a big race because Rod Mohler had been Prosecuting Attorney for 12 years, and he is also a really nice guy with a lot of support. Justin had been positioning himself to run for the last four years and his hard work paid off.

For Circuit Judge:

Judge Robert Irons narrowly won by about 200 votes. This was a difficult race because it pitted Monroe County voters against Summers County voters, each voting a majority for their resident candidate. I believe the voters made a wise decision as Judge Irons has served the 31st judicial circuit well since he has held office.

See the Monroe County results here.

In Summers County:

For Prosecuting Attorney, incumbent Amy L. Mann, pulled out a major victory over challenger Jason Parmer, grabbing 2,277 votes over Parmer’s 1,280. This race had gotten nasty in the final weeks leading up to the election, and apparently that didn’t play well with the voters of Summers County. In my opinion, the most important quality of a good prosecutor is sympathy and compassion. Not all persons charged with a crime deserve life in prison. Most are generally good people, and most will be back out on the streets before long. A prosecutor who will treat defendants as they themselves would want to be treated, can clean-up the streets much faster than a “lock-em-up-throw-away-the-key” prosecutor. Amy is a compassionate person, and she uses her discretion wisely. But she also knows when to fire both barrels - trust me.

See the Summers County results here.

- John H. Bryan, West Virginia Attorney.

From his Blog, Simple Justice, by New York criminal defense attorney Scott Greenfield posted about instances of federal judges in New York who made actual findings that certain cops had committed perjury before them.

Instead of publicly reprimanding them, the judges seemed more concerned with preventing damage to their careers. As Mr. Greenfield points out, “welcome to the real world of criminal law.” But why would cops risk losing their job and their pension to lock up any individual criminal? Mr. Greenfield replies, “tell it to all the people that cop’s put away before. Tell it to all the judges who defaulted into finding the cop credible, because he’s a cop, or the juries who bought into the prosecutor’s argument that “there’s no reason why the cop would lie…” There’s a very good reason; that’s just what they do. It’s their job. The courts are a big joke, and they say the magic words that put the bad guys in jail. No big deal, just another day’s work.”

Mr. Greenfield posits that “if there were ramifications for getting caught lying, such as jeopardizing a cop’s career (or more importantly, his pension), they would stop. No perp is worth losing a pension. But cops testily with impunity, and everyone in the system, except the criminal defense lawyer, is there to protect that cop from the consequences of committing the crime of perjury.”

And yes, it is no different in West Virginia.

Read the post here.

- John H. Bryan, West Virginia Attorney.

From the Bluefield Daily Telegraph today:

Mario Goodson, 18, appeared Monday for a preliminary hearing before Magistrate Rick Fowler. Fowler found probable cause in Goodson’s case and bound him over to the Mercer County Grand Jury.

Both Goodson and Kenneth Dwayne Eaves, 19, of Bluefield are facing charges of conspiracy and first-degree murder in the Dec. 14, 2007 death of 28-year-old William Jerome Flack of Bluefield. Detective L.B. Murphy of the Mercer County Sheriff’s Department testified Feb. 8 that witnesses allegedly heard Eaves order a second person, Goodson, to shoot Flack.

Wow, that is a big surprise. Many West Virginians do not realize that if they are arrested on a felony, they are entitled to a preliminary hearing in front of a supposedly neutral magistrate to establish whether the police have probable cause to hold you in jail (or on bond) for the charges. They also don’t realize that this process is for the most part a farce, a formality. Preliminary hearings in West Virginia are a joke. The magistrates for the most part are not lawyers and have no legal training on what is and what is not probable cause. They, for the most part, have no idea what is and what is not admissible under the West Virginia Rules of Evidence (of course, there are exceptions).

The West Virginia Rules of Criminal Procedure allow for “relaxed hearsay” in preliminary hearings. This means that the investigating officer can come in and testify to some hearsay if there is a substantial basis for believing that (1) the source of the hearsay is credible; (2) there is a factual basis for the information furnished; and (3) it would impose an unreasonable burden on one of the parties or on a witness to require that the primary source of the evidence be produced at the hearing. Therein lies the problem. Many magistrates will just allow the investigating officer to come in and testify to anything and everything they were told throughout their investigation. Then, the magistrate will say, “well, probable cause is a very low burden, and they have met the burden… I find there is probable cause.”

For instance, I had a client who was charged with a absolutely ludicrous felony charge in Greenbrier County. His preliminary hearing was held by a magistrate in Greenbrier County. The State subpoenaed three witnesses: the investigating officer, and two very disreputable convicted felons whom had been caught red-handed and pointed the finger at my client to try and get a plea deal. They appeared and were waiting in the waiting room as the hearing began. The State called the officer first, and he proceeded to testify to almost entirely hearsay testimony - basically everything the other two idiots in the waiting room would have testified to. I objected to hearsay, reciting the above relaxed hearsay rule, but the magistrate basically said that all hearsay is allowed in preliminary hearings. Thus, the magistrate allowed the hearsay testimony despite the fact that the two idiots were in the next room, so the primary source of the evidence could have testified. Furthermore, they were extremely incredible. One of them was notorious in the county for being a career criminal, having spider web tattoos all the way up his neck. The lying officer however, grinned and testified that he thought the man was credible. I later told this to the Prosecuting Attorney, and he laughed and joked that everyone knew that this was the most incredible man in the county, perhaps the state.

As it turns out, when it came my turn to call witnesses, I obviously tried to call the two idiots in the waiting room, so that my client would at least have the opportunity to confront his witnesses. Believe it or not, the assistant prosecutor, on his first week of the job, objected on the grounds that they may be charging one of them with a crime and one may testify against the other, and that therefore there was a “use immunity issue.” I responded that it was irrelevant, and was the prosecutor’s problem and had no bearing on the hearing. The magistrate however, got really, really worried that she was going to make someone mad in the prosecutor’s office and decided not to allow me to call any of the witnesses that had been subpoenaed to the hearing and were waiting in the next room. Then, that was it: she found probable cause and we were not allowed to call any witnesses. This was an absolute disgrace to our criminal justice system. Imagine if it were your son or daughter that was treated like this.

Fortunately this client was able to make bail, as his case was never even brought to the grand jury. If it were some poor sap who didn’t have any money, he would still be sitting in jail thanks to this meaningless system of magistrates conducting preliminary hearings.

By the way, these same non-lawyer judges are the ones who make decisions on whether or not the police have probable cause to be issued warrants to search your home - or to arrest you. Yes, it’s very scary and very unjust.

Read the full article here.

- John H. Bryan, West Virginia Attorney.

The following article was written by a Florida DUI lawyer about how to, and how not to, undertake a breath test during a DUI stop or arrest - which was forwarded to me by a colleague in Florida. Obviously, I cannot vouch for its scientific accuracy, so take it for what its worth:

“Stop breathalyzer abuse: Seems that they don’t tell you everything whey they tell you to blow into the machine… ”

By Tom Hudson

The last thing I want to do is to tell drunk drivers how to “beat” the Intoxilyzer. But I am tired of seeing the police misuse the Intoxilyzer to beat up on the citizenry. So the following advice is how to get the Intoxilyzer to measure exactly what it’s supposed to measure: Your breath alcohol. And if it does that, you will probably be under the legal limit.

The police are trained to operate the Intoxilyzer. They take a 24 hour course, and are awarded a certificate that says that they are trained to be “breath test operators” under Florida law. I’ve taken that course, and have one of those certificates.

When the police are trained, they are instructed to tell the subject to “keep blowing until the tone stops.” In reality, you cannot keep blowing until the tone stops. Why not? Because the tone doesn’t stop until you are out of breath. It is a trick, to try to get you to blow out your deep lung air. Why are the police taught to do that? It turns out that the last fraction of a second of the breath is all that the Intoxilyzer measures.

Your “vital capacity” is the amount of air you can exhale from a full inward breath until you cannot blow any more. The lungs of a healthy human being have a typical “vital capacity” of around four and a half liters. That’s 4,500 milliliters. The breath chamber of the Intoxilyzer 8000 is approximately 31 milliliters. In other words, the breath machine measures less than the last 1% of your breath. (Actually the last .6%)

They are measuring only the last 1% of your breath!. That would be fine if the last 1% were a representative sample of your breath alcohol.

But it’s not.

The last 1% of your breath contains the highest alcohol concentration of your entire breath. By telling you to blow until you are out of breath, and measuring only the last 1%, the standard instructions for the Intoxilyzer can overestimate your breath alcohol by as much as 400%.

400%!

So how do you stop the police from overestimating your breath alcohol? Two steps. Remember this: Three and Two. That’s the number “3″ and then the number “2″.

Step One. Take 3 deep breaths before you blow. If you hyperventilate three times before you blow into the machine, you will reduce your breath alcohol by as much as 55%. This occurs for two reasons. First, the breaths cool off your lungs. When the lung tissues are cooler, less alcohol goes from liquid form into vapor. The result is a lower breath alcohol. Second, the breaths clear out the alcohol from your lungs, filling them with fresh air. Find out more in this scholarly article.

(By the way, the reverse is also true. If you hold your breath for a few seconds before you blow, your breath alcohol will be increased. So whatever you do, DON’T HOLD YOUR BREATH before you blow into the machine!!)

Step Two. Blow out HALF of your breath and STOP. Half of a breath is all that you need to give a valid sample under the Florida protocols. The Intoxilyzer 8000 requires only 1.1 liters of breath to register as “adequate volume.” Blowing the minimum required can reduce your measurement by another 30%. How does it do that? By avoiding that alcohol-saturated “deep lung air” that the police are trained to test. The statutes do not tell them to test “deep lung air.” The statutes tell them to test “breath.” So why do they test “deep lung air” instead? Because that’s where the most alcohol is! It is a fraud, plain and simple!

So….. does this work?

I have personally, after a few drinks (all in the name of science, mind you) blown into an Intoxilyzer and obtained a reading of .099. That is over the legal limit. About three minutes later, I took my own advice and blew into the Intoxilyzer after three deep breaths. And blew only half of my breath. The result? A breath test reading of .028.

There you have it. The 3-2 Rule. You can blow an adequate sample under Florida law, and not allow the police to skew your sample so it looks higher than it really is. Sometimes blowing smart is a lot better than refusing to blow at all.

But even with all of this knowledge, the best way to avoid a DUI is not to drink and drive. Period.”

- John H. Bryan, West Virginia Attorney.

From West Virginia Metro News website:

Regarding the recent controversy regarding the governor’s daughter and WVU, was a crime committed when the Bresch transcript was altered? Attorney Tom Payton with the Payton Law Firm, analyzed that very question. His take on the facts are that:

1) In at least one course that she did not actually complete, she was given a grade that “was simply pulled from thin air.”

2) The grade modification forms bear only the signature of Dean Sears and “[a]ppropriate faculty and division chairs were neither consulted nor asked to sign these forms.”

3) “[O]ver Dean Sears’ signatures rather than the requisite course instructors’ and department chair’s signatures (as required by WVU standard operating procedures), grade modification forms were prepared and filed to add to her transcript credit for (redacted) hours of (redacted) that the principals all knew that she had not taken.”

4) The amended transcript now reflects her completion of some courses that she did not in fact complete, and reflects a number of grades that she did not in fact earn.

He points to the pertinent criminal statute which could apply as West Virginia Code § 61-5-22, which provides that:

If any clerk of a court, or other public officer, fraudulently make a false entry, or erase, alter or destroy any record in his keeping and belonging to his office, … he shall be guilty of a misdemeanor, and, upon conviction, shall be confined in jail not more than one year and be fined not exceeding one thousand dollars; and, in addition thereto, he shall forfeit his office and be forever incapable of holding any office of honor, trust or profit in this State.

So as he sees it, given that Dean Sears signed the document, if he is a “public officer,” then the statute may apply to him. However, his analysis of the case law reveals that the statute probably would not apply to Dean Sears, and that the ultimate punishment for his in this matter is likely resignation. He does note though, that there is enough authority here to form an investigation, subpoenas, grand juries, etc.

Read the entire article here.

- John H. Bryan, West Virginia Attorney.

From the Charleston Gazette:

A jury found a Braxton County magistrate who is up for re-election next week guilty of attempted retaliation against a state witness Wednesday.

Prosecutors charged Carolyn Cruickshanks with conspiring to retaliate against Philip Dailey, who testified against her son, Jordan Grubb, in a drug case.

Cruickshanks reportedly delivered a copy of Philip Dailey’s plea agreement and a transcript of his plea hearing to the jail, where Grubb hoped other inmates would punish Dailey for being a snitch.

It always amazes me that these small-town political conspiracies involving corrupt public officials actually take place in West Virginia. Then, the corrupt official still runs for office as they are on trial…. Unbelievable.

Read the full two-page article here.

- John H. Bryan, West Virginia Attorney.

From the Charleston Daily Mail:

A Montcalm High School teacher accused of having a relationship with a student faces sexual abuse and abduction charges.

State Police First Sgt. Gary Tincher says 30-year-old Christi Lee Williams was arrested in late April.

Williams remains free on bond after being charged with sexual abuse by a parent, custodian and guardian and abduction of a student within 1,000 feet of a school.

Tincher says Williams is accused of having a relationship with a 16-year-old male student who allegedly left school property with her.

Tincher says the teacher has been suspended from her job.

What is the deal with young, attractive teachers across the country having these sexual relationships with young boys? I can’t remember hearing anything like this when I was in high school - other than in a Van Halen song.

Let’s look at the charges: First, abduction of a student within 1,000 feet of a school. Okay, that charge is garbage. The kid was 16 - old enough to drive, and actually 16 is the age of consent. The allegations are that he went willingly. Prosecutors and legislators can make up whatever law and charges they want, but the fact is that there was no abduction. This is just a garbage charge to help them get a plea.

Secondly, sexual abuse by a parent guardian or custodian. This is the most abused and misused charge on the books. The reason is this: in almost every situation, like it or not, the legal age of consent in West Virginia is 16 years old. That means that ignoring relationships, this 16 year old kid can have sexual relations with whomever he wants. However, if there is a relationship, then all of a sudden the other party goes to prison for 10 to 20 years. That’s right, that is the punishment for this charge (something that you are not allowed to tell the jury). So, if the prosecutor alleges the other party is a babysitter, teacher, whatever - even if the kid is 16 or 17 and has his own car and drives all over the place, it then becomes punishable by 10 to 20 years. This is an abuse of the law. The charge was meant to cover awful situations where parents or actual guardians abuse children under their care. The problem is that the statute was written much to broadly, thus allowing police and prosectors to abuse it. For instance, this woman is facing 10 to 20 on that charge. Under the statute, technically, she can be convicted on it. The jury never gets to know that she will get 10 to 20. They will assume she will get probation, or maybe 6 months or a year. She will get convicted on the charge, despite the unfairness of it. The end result is, that her lawyer will most likely advise her not to take the chance of going to trial, and to accept the plea offer of misdemeanor battery with a sexual motivation, or something like that, which will put her in jail for a year and make her a registered sex offender for life.

Read the full article here.

- John H. Bryan, West Virginia Attorney.

From the Register-Herald this morning:

A wrongful death lawsuit filed late Monday afternoon claims members of the Raleigh County Sheriff’s Department acted negligently when they shot and killed a Cabell Heights man who was firing a high-powered weapon in the early morning hours of July 4, 2006.

Filed by Charleston attorneys Michael A. Olivio and Travis A. Griffith on behalf of Mary Webb, the widow of Robert Webb, the suit lists defendants as the Raleigh County Sheriff’s Department, the Raleigh County Commission, Sheriff Danny Moore, then-Chief Deputy Steve Tanner, Deputy Greg S. Kade and Deputy John E. Hajash.

According to Register-Herald files and the complaint, Kade and Hajash were responding to a complaint that Robert A. Webb, 44, was playing loud music and shooting an AK-47 assault rifle outside his Cabell Heights home.

According to the lawsuit, Webb was discharging his firearm in celebration of his birthday and the Fourth of July holiday, but more than 30 minutes had elapsed between the firing of the weapon and the arrival of Kade and Hajash at the Webb residence.

The suit also claims “numerous residents within the neighborhood” were also firing weapons in celebration of the holiday and that Webb never fired his gun to threaten or endanger anyone.

The complaint claims Kade and Hajash parked away from the residence, out of sight, and approached on foot “while using cover to conceal their presence.” It also claims Kade took an assault shotgun from their patrol vehicle instead of his service standard handgun in spite of the fact the call was considered a “non-emergency nuisance call.”

When the deputies arrived on the scene at approximately 1 a.m., Webb was not shooting; still Kade and Hajash remained concealed by a row of trees until they witnessed Webb turn away from them, “at which time they ran toward Robert Webb in order to close the distance between them,” according to the complaint.

“Deputies Kade and Hajash proceeded up the street toward Mr. Webb and shot Mr. Webb while he was standing in the driveway of his home,” the complaint reads. “Deputies Kade and Hajash failed to identify themselves as law enforcement officers prior to firing their fatal shots at Mr. Webb.”

Webb was hit in the head and knocked to the ground by an initial shot from a shotgun, according to the complaint. While he was on the ground, one of the deputies shot him again with a handgun.

The complaint also claims emergency medical personnel were denied immediate access to Webb by members of the Raleigh County Sheriff’s Department, who finished taking photographs before they allowed medical personnel to touch Webb.

Obviously there are two sides to every story, but if the allegations that are included in the complaint are true, then there were some real problems with the conduct of the law enforcement officers in this situation. Having formerly investigated pattern or practice police misconduct for the Department of Justice, the way these officers approached the scene jumps out at me as either gross negligence or reckless disregard for human life and proper police practices. First of all, shooting firearms into the air on the 4th of July is not an offense punishable by death. They should have approached in their cruisers with their emergency lights on. There was no allegation (apparently) that the victim was firing his weapon towards anyone else. It was obviously a 4th of July celebration. Secondly, the man was in his driveway, it was dark, and they sneaked up on him with a shotgun pointed at his face. It would have been understandable if the victim had shot at the officers. However, he did not - there apparently was no evidence that he attempted to shoot at them. It is uncontested that the victim never fired a shot. Having your head blown-off by a short-barrel shotgun is a pretty harsh way to die, and understandably, the family is looking to make the county pay.

Read the full article here.

- John H. Bryan, West Virginia Attorney.

From the Charleston Gazette today:

Charges are expected to be filed against 19-year-old Andrew S. Hardin, of St. Albans, who allegedly shot and killed Nicholas Lee Caldwell while hunting turkey on Tuesday, state Division of Natural Resources investigators said.

Caldwell, 16, was in a wooded area off Kanawha Street near St. Albans when he was hit by shotgun pellets at about 8:30 a.m., said Hoy Murphy, spokesman for the DNR, which is investigating the incident.

People near the scene told investigators they saw 19-year-old Andrew S. Hardin, of St. Albans, hunting in the area. In an interview with officers, he later confessed he was the shooter, DNR officials said.

As in many other cases, usually the cover-up is more serious than the original crime. What if the victim was alive after the shooting and the shooter left him to die? In that case, he should face murder charges. The autopsy, which will almost positively take place, should indicate whether or not it was an immediate death.

The victim was hunting on private land near his home and he had permission to be hunting there. The shooter however, at least according to the article, appears not to have had permission to be hunting on this land. This is absolutely disgusting to me. As an avid turkey hunter, I have hunted around many other people, and almost every single one of them takes the proper safety precautions. Anyone who can’t tell the difference between a turkey and a hunter ought not to be in the woods in the first place. Furthermore, since this person was likely trespassing, he ought to go to prison for this.

You can read the entire article here.

- John H. Bryan, West Virginia Attorney.

From the Charleston Gazette today:

Nicholas County’s prosecuting attorney was charged with DUI on Sunday after wrecking his car in a single vehicle accident in Webster County. Mark Hudnall was elected Nicholas County prosecutor in 2004 by a narrow margin over James “P.K.” Milam. He is running for re-election this year, and faces Milam and Keith W. McMillion in the Democratic primary next month.

What a poor decision to make generally, but on the eve of an election? Being the elected prosecutor of a county, and charged with the duty to prosecute individuals for violations of the law, including DUI, he ought to make a public comment in the next day or so - either apologizing or proclaiming his absolute innocence (in which case it better be the truth). In any event, what a lucky break for his Democratic opponent.

Read the full article here.

- John H. Bryan, West Virginia Attorney.