Bennett’s jury selection rules (cont’d)

I never quite finished going through Mark Bennett’s jury selection rules, so I feel it is necessary to include the rest he subsequently posted, all of which can be found here.

We left off at Improv Rule I, which refers to improvisational theater.  The rule is, “no scripts.”  If you follow your outline of questions, you are going to get outlined answers.  Voir dire should have the flow of a conversation – a real one.

And then there is Improv Rule II, which also derives it’s name from improvisational theater.  He’s says that the rule is to “not block,” which means that if your partner at the improv, i.e., a prospective juror, brings up a topic to discuss, don’t ignore that topic or switch to another which is more comfortable for you.  This is how a conversation, and also voir dire, should work.

Rule 8 is the Shrink Rule.  Rather than just confirming by silence that the prospective jurors agree with the points of view, legalities, or issues as you/the court see them, ask the jurors openly, how they feel about any particular issue or idea, and let them answer.

Rule 9 is the Beer Pong Rule.  ”The ball is always in play.  If the ball hits the floor, ceiling, wall or even leaves the room it can still be, and should be, hit back in the direction of the table.”  Comments, issues and questions, should be forwarded from one prospective juror to another, i.e., “who disagrees with Mr. Jones.

Rule 10 is the Marathon Rule: save something for the end.  This is something that should be utilized also in cross examinations.  In cross examinations, you always want to have one final question – one completely unobjectionable (you never want to end a cross by sitting down on a sustained objection), hard-hitting, no-way-out, glance-at-the-jury -as-you-are-sitting-down-triumphantly-question.  That way, no matter how the cross examination goes, you end on a high note, and it is never awkward.  The cross may have been a disaster, but if you end with your ace-in-the-hole question, you leave off on a high-note.  It’s a great idea to also have one of those for voir dire.  Bennett suggests something like, “raise your hand if you promise to give [client] a fair shake,” or “can we all agree to wait till all the evidence is in before deciding this case?”

Rule 11 is the Playing Doctor Rule: I’ll show you mine if you show me yours.  If you want the jury to discuss something deep, such as prejudices (which he rightly states that we all have – including lawyers and jurors) we have to be willing to discuss our own, such as our first thoughts when we saw our client’s tattoos – or something of that nature.

Rule 12 is the Field Trip Rule.  This is about paying attention to the group dynamics that develop between these strangers who are forced together, such as on a field trip.  And also it is about becoming a part of the group, and allowing these dynamics to steer the conversation of voir dire.

Rule 13 is the Undertow Rule.  It’s not possible for one person to keep up with all of the prospective jurors, whether there are 30 of them or 60 of them.  You have to have an assistant, or another lawyer, to help you keep track of what is going on.  It literally is impossible to do this yourself, and is foolish.  Of course, as Bennett notes, your client can help you, and indeed should have a say in the process, but that is questionable help given the circumstances.  Once the process starts, it goes quickly in my experience.  And it takes at least one person full-time to mark down names and particular answers which need to be followed up on during individual voir dire – if the jurisdiction allows.  It also helps to know the exact layout in which jurors will be seated, in order to develop some type of diagram to aid your assistant, and yourself when it comes time to make the tough decisions.  It can be different from judge to judge.

Rule 14 is the Atticus Finch Rule: be the lawyer they want to stand up for.  This refers to the scene in To Kill a Mockingbird where the African Americans stand up for lawyer Atticus Finch as he walks out of the courtroom – not because he won, but because he was a good man.  I have said this before.  There are a lot of jerk lawyers out there.  Jurors pick up on these things, and they naturally, I believe, will lean towards those who they respect.  And they don’t respect the jerks.

Rule 15 is the Bat Rule: ping, then listen, or fail.  I other words, ask questions and then listen to the answers.  Obviously this is the foundation of being a trial lawyer.  But it can be easy to rattle off questions without really listening to what is being said.  It takes conscious effort at listening and absorbing the answers to lead the conversation, rather than just your questions.

And lastly, the Herd Rule.  A jury pool is like a herd of animals.  This can always be taken into account when asking questions.  People don’t want to separate from the rest of the group.  They are more likely to raise their hand or speak up if you ask “how many of you agree with [prospective juror] about [issue]?” and are less likely to respond to “do any of you believe [issue].”  Always remember the Herd.

Thanks again to Mark Bennett for coming up with these great rules.  He reminds me of the bar exam instructors, who teach things in terms of little stories and songs so that you can remember them during the test.  It certainly is helpful to be able to quickly review these before voir dire.

- John H. Bryan, West Virginia Attorney.

Bruce Decker/”ejustice”: STOP CALLING MY OFFICE

ATTENTION: Bruce Decker from “ejustice”: STOP CALLING MY OFFICE, STOP EMAILING ME, STOP SOLICITING ME.

If I get one more telephone message from “Bruce Decker” saying that he “wants to send me some cases” or “wants to talk with [me] about a medical malpractice case I’m going to have a conniption.  Nowadays lawyers are constantly barraged with these marketing sharks.  They want to help you do this, help you do that.  They know that the people who can afford to hire them do not want to talk with them, because they are intelligent and can see them for who they really are.  So they try to trick you.  They call your office and they try to get through to you by telling your receptionist that they want to talk to you about a case, or referring a case, or something like that.  In that way, it sounds like a prospective personal injury client, or maybe another attorney interested in referring you a personal injury case.

However, Bruce Decker has not yet gotten up early enough in the morning to trick me into wasting my time listening to his lame pitch.  Though he did succeed in getting me to waste my time writing this post.

- John H. Bryan, West Virginia Attorney.

Worshipping Psychobabble

Lately I have become unusually aggravated by so-called psychological “experts” testifying in criminal and civil courtrooms in West Virginia. I have cross examined these so-called “doctors” all-the-way from Monroe County to Berkeley County in the past month.  I have reviewed their reports.  I have come to the conclusion that (big surprise) its all about money.  Yours and mine.  There is an entire industry of people who, with maybe an extra year of college, get to milk the taxpayers for their junk-science counseling and fabricated analysis.  They would not survive in the free market, except of course, in the realm of being “expert witnesses” for litigants who can afford them.

From child custody cases in Family Court, to abuse and neglect cases in Circuit Court, to the evaluations of defendants in criminal sentencing in Circuit Courts, it’s always the same thing: psychoquack gets money, person meets with psychoquack, psychoquack writes a report dribbling on about some test he or she ran on the person and what the results mean and ultimately giving an opinion that’s not worth a grain of salt.

I cross examined an “expert” in an abuse and neglect trial in Circuit Court the other day.  I found out that this guy “examines” parents who are facing termination of their parental rights, upon request by the State (DHHR – who is the party seeking the termination) to the tune of about 20 per month, all “referred” by DHHR, whereby he gets paid at least 400-500 dollars for each “examination”.  That’s about 9,000 to 10,000 per month of income this guy receives from the State to throw these folks under the bus.  I guess it’s no big surprise what his opinion was in my case.  Of course it was that parental rights should be terminated – despite the fact that the treating psychoquack and the social worker both had the opposite opinion.  He was paid for his opinion, and he gave it – regardless of whether it was the right thing to do.

In Family Court cases, “expert” psychoquack witnesses routinely testify, allegedly in the best interests of the children.  But they are nothing more than psycho-prostitutes, where the party who hires them is by default the ideal person to maintain custody of the child(ren).  Is there anything more disgusting than a “professional” who pretends to act in the best interests of a child, but 100% of the time in reality acts in the best interests of the party paying them?  I’d rather associate with inmates.

And then there are the psychoquacks who make a living off of court referrals for evaluations in criminal sentencings.  Many times they charge 3,000 to 5,000 dollars per “evaluation,” and the poor defendant, if he or she has some income or assets, has no choice but to pay it – the judge ordered it.  And for those who are indigent, guess who foots the bill?  Ultimately the taxpayers.  Every one of these reports was about the same: pages and pages of dribble about some scientific and complex sounding test that they ran, and the scores which the defendant scored on each individual test.  Then you turn about 10 pages to get to the very end, and there is about a one page opinion that goes on and on without really saying anything helpful, and which includes “recommendations” which are copy and pasted from some other report that they did the day before.

There.  I’ve released these negative thoughts which have been brewing in my head for quite some time – now you deal with them.

- John H. Bryan, West Virginia Attorney.

Polygraphs: to do or not to do?

There is a common misconception out there that I have consistently (about 100% of the time) encountered in criminal defendants (or soon-to-be criminal defendants) that (1) taking a polygraph/ “lie detector test” can prevent their being charged with a crime if they “pass”; and (2) that if they fail the test, the results are not admissible in court.

Let me quickly and humanely put these myths to rest.  If you take a polygraph test in West Virginia, your local Andy Griffith Sheriff, or your local friendly West Virginia State Police officer will NOT be giving you the test.  They will be bringing in a professional conviction machine in to convict you.  What I mean is this.  There are various state police officers who specialize in giving polygraphs.

The investigating officer, wherever he may be, convinces a gullible suspect into proving that he is innocent by taking a polygraph.  The expert then arrives, and has the suspect sign various papers, saying that he or she understands his rights (the right to remain silent, the right to an attorney, etc.) as well as the polygraph process.  Then the suspect is asked various questions.  Of course, the suspect fails.  The the expert polygrapher/interrogator asks, “why do you think you failed?”  Then everything the suspect says thereafter, the officer puts into his official report and thereafter testifies to at the trial, if necessary.  In all likelihood, the trial never took place because the anticipated testimony of the polygrapher was enough to force a plea.

So understand this: the results of the polygraph indeed are not admissible against you.  However, everything you say “can and will be used against you in a court of law.”  It’s a trick.  It’s not about the results, they are irrelevant.  If the cops weren’t convinced you were guilty you wouldn’t be there.  It’s all about obtaining a statement from you.

I have lost clients before because I refused to allow them to take polygraphs.  They think that they can take them and pass them and prevent charges from ever being filed against them.  The cops tell them, don’t listen to that attorney, I want to help you, he’s going to get you charged.  Then guess what, they do it anyways and convict themselves.

Don’t say I didn’t warn you.

- John H. Bryan, West Virginia Attorney.

People over “tactics”

I have previously posted about the police’s use of “tactics” and “training” to trump the rights of innocent citizens.  Basically, sometimes when you get pulled over, a cop walks up to your window with his hand on his gun; or yells at you from a distance when he could be talking to you; or orders you out of your vehicle; and pretty much treats you like a criminal.  The reason for this is supposed training and tactics which are meant to protect the officer.  Because everyone knows that a traffic stop is the most dangerous scenario for a police officer.

Well I say, too bad.  If you can’t handle pulling people over, then don’t pull them over.  Or don’t become a police officer in the first place.  98% of us don’t deserve the disrespect and insult of being treated like a criminal.  Take a look at small town police departments.  You rarely see such “tactical” behavior, and yet, you don’t see every other cop getting shot down on the side of the road.  Then, you take these larger departments, and its like pack behavior.  They start behaving with an air of inhumanity, almost like an army, and “protect and serve” becomes just “protect”.  For instance, you get pulled over for speeding, and then you get questions like, “do you have any weapons?”  This gets asked at pretty much every stop now.  And without some type of reasonable articulable suspicion, or probable cause to ask it, it’s just plain old harassment.  And the correct answer is, its none of your business if I have any weapons.  Its a free country.  Though that might just invite the officer to remove you from the vehicle and possibly arrest you.  If you really piss them off, they arrest you for “obstruction of an officer”, i.e., “contempt of cop.”  Or maybe assault of an officer – saying you somehow threatened them.  Then try and prove them wrong – prove yourself innocent.

There was an interesting article in the Charleston Gazette this morning, about a lecture which was given to the Charleston Police Department recently by Alex D. Huskey, superintendent of the Indiana State Excise Police.

Huskey asked the 16 officers at the class why the approach they have to many situations was tactical.

“It’s because of what you might encounter,” one officer said.

“Safety reasons. Everyone you run into is a potential threat,” another said.

Huskey agreed that officer safety is one of the most important things an officer must focus on, but he said that police across the country spend the least amount of time focusing on what makes people tick because they are too busy focusing on how to protect their own lives.

We are not enemy combatants.  We are free American citizens, and the situation should be rare where a government employee with a gun points it at you and issues commands.  But unfortunately, in the name of “officer safety,” we allow it to happen everyday.  A bank robbery suspect?  Fine.  But innocent motorists?  If they were speeding, give them a ticket.  But quit harassing people.

- John H. Bryan, West Virginia Attorney.

WV State Police Settle Case

A case, about which I have twice previously posted about, has now apparently settled, with the WV State Police forking out at least $200,000.  This was a good case from a plaintiffs perspective.  The plaintiff himself is a prominent lawyer.  He was beaten to a pulp, as the insulting photograph of him with black eyes in an orange jumpsuit will attest to.  There really isn’t any excuse for this sort of a beating.  The cops were not facing a giant man on a PCP induced rage, he is actually a rather gentle looking guy.  But most importantly, the cops were caught trying to cover their tracks.  And the cover up is almost always worse than the original wrongdoing.

But what is surprising here, is that none of these officers were charged criminally – at least not yet anyways.  And the ironic thing is that, if criminal wrongdoing could have been proven, under the State’s insurance policy, coverage could be excluded, possibly releasing the State from liability.  Of course there were some allegations against the State Police in general, as well as the Colonel, for some conduct, such as knowingly allowing surveillance cameras to remain inoperable, and probably for insufficient training and complicity in the attempted cover-up which took place.  That may have been the reasoning.  Or, it may have just been a protect-your-own type of thing.

Regardless, you can bet your rear-end that if a non-law enforcement person was involved in a fight and beat someone like that, that person would be charged with a crime immediately.  Its just another example of the gross double standard.  Of course, quoting the Gazette article, the settlement agreement stated that:

The settlement is not an admission of liability, wrongdoing or responsibility for damages, according to the defendants’ written offer. “[L]iability damages or any other wrongdoing are expressly denied [by] these defendants.”

Yeah right.  Trust me, the State Police does not cough up $200,000 because they believe they did nothing wrong.

- John H. Bryan, West Virginia Attorney.

Out of control incarceration

In the old days, when someone killed someone else, they were either hanged, shot, or acquitted.  There was none of this business of keeping people in jail for years and years on end, or for the rest of their lives.  We have gotten to a point, where we incarcerate millions and millions of people perpetually.  I’m not against the death penalty.  I believe it would be more humane to execute someone by firing squad than to keep them in a cage like an animal for years on end.  This is torture, I believe.  And it’s a huge burden on the taxpayers.

At some point we need to radically alter our criminal justice system.  Maybe when we reach the point that more people are in prison than who are paying the taxes and footing the jail bill we will come to our senses.  We are to the point now where just about every thing you can think of is illegal.  Then, once we brand someone a felon, they no longer can get a job, they no longer have the right to defend themselves with firearms, and so on and so forth.  So even after people do their time and serve their debt to society, we keep kicking them in the rear, insulting them, allowing society to disrespect them, and we prevent them from earning their own way through the rest of their lives.

There is a saying in criminal defense: we are protecting those who have fallen short of perfection from the wrath of those who believe they have attained it.  If Jesus were alive now, who would need his help?  I think he would be helping those who are persecuted.  Who is more persecuted – at least in the U.S. – more than those who are incarcerated or awaiting trial on criminal charges?  Jesus would surely defend those being persecuted – i.e., “charged” – by others; those who have their integrity, their liberty, and their humanity stripped from them.

- John H. Bryan, West Virginia Attorney.

But what about the felony sentencing in WV?

As I was writing the post yesterday about the downward trend in West Virginia misdemeanor sentencing, I was thinking, well what about felony sentencing?  The same principles apply.  Why fill up our prisons – at our cost – for property crimes and other non-violent offenders.  What’s the point?  With all the federal civil rights requirements, we have to provide inmates with medical care, etc.  With the perpetrators in prison, the victims aren’t getting any restitution anyways.  It’s a lose-lose-lose situation.

Today the Register-Herald had just such an article on this topic, titled “WVU examining prison sentencing: Researchers looking at ways to ease overcrowding in jails.”  It quoted senators Kessler and Chafin, both of whom are lawyers:

Back when he was handling criminal law, Chafin recalled how a defendant in court for a property crime likely could have avoided a prison stretch.

But when the victim and his family appeared in court, the sitting judge clearly was moved and came down hard on the defendant, the senator said.

“First thing you know, the guy’s locked up one to 10 and really didn’t need to go,” Chafin said.

Kessler discussed the increase of punishments for many of West Virginia’s criminal statutes:

Within the past decade, Kessler pointed out afterward, the Legislature has raised penalties on two to three dozen statutes, often in response to a sensational crime given voluminous media attention.

“It seems that we do it piecemeal often times in knee-jerk reaction to some type of crime that happens in our communities that gets a lot of headlines,” he said.

“So we go out and double the penalties on those.”

Basically, WVU will be conducting research, and in the end, hopefully someone in the state legislature will be promoting reform with the goal of reducing the state prison population.  Mainly this can be done through the decrease of penalty ranges for common property-type crimes, and the promotion and creation of other forms of alternative sentencing.  But in the end, we will always have the problem of circuit judges facing reelection, and the goal of reducing prison population will never be an election-winner.  Maybe we should also reform the selection procedures for circuit judges, and take politics out of the equation.

- John H. Bryan, West Virginia Attorney

Downward trend in WV misdemeanor sentences [well, mostly]

There was an interesting article in the Beckley Register-Herald this morning, about the downward trend that we are seeing in West Virginia with misdemeanor sentences involving jail time.  However, there were two exceptions – one of which was Monroe County, which went from 20 misdemeanor jail sentences in 2008, and only 5 the year before, to 34 this year.

Every county could spend every dime they own to incarcerate all of those who deserve to be incarcerated, but its just not worth it.  Especially now, West Virginia counties (and the State) need to learn to live within their means.  As property values are decreasing, West Virginia counties are raising their property taxes, as if properties values have been skyrocketing.  But they haven’t.  County spending has been the only thing skyrocketing, and they have to pay for it somehow.  This is not the fault of the criminal justice system, its mostly the fault of the school systems (who get about 80% of the county budget).  Just take a look a line-itemed explanation of how much money they spend and what they spend it on.  In contrast, the local budgets dealing with law enforcement and criminal justice, are minute.  Still though, the same citizens who are complaining that the prosecutors and judges are not tough enough on crime, will be the first to complain when they get taxed to death by the county.  These people will never be able to be pleased.

We should limit those we incarcerate to dangerous persons – persons who need to be behind bars.  Why spend our money using incarceration as a punishment when there are other forms of punishment that cost less, or are free?  Whatever happened to community service?

Part of the problem here is that we have turned the criminal justice system into a debt collection service.  Defendants agree to pay restitution, or they are ordered to pay restitution.  And the threat of incarceration, in the form of a suspended sentence or contingency, is held over their head.  When they don’t pay, they get sent to jail.  And they usually don’t pay.  The overwhelming number of criminal defendants have no source of income.  They don’t really need an income in West Virginia.  They know that the taxpayers will take care of them one way or the other.

Then you have these alleged victims, who instead of filing a civil suit in magistrate court, camp out on the prosecutor or magistrate’s door step, demanding that, as a voter, they have these individuals arrested and jailed until they are paid.  In the end, the county, and hence the taxpayers, end up footing the bill for these people to be incarcerated.  In a sense, we have gone back to the old system of debtor jails.  I would guess that there are more regional jail inmates who are there for property crimes or financial crimes rather than for violent crime – which actually is pretty rare in most of rural southern West Virginia.  And most of those would not be in there if they could come up with the money to pay “restitution.”

Well I say let the alleged victims sue them and obtain a civil judgment for the money.  Why should we all have to pay for it?  Or, in those cases that are clearly very “criminal,” the sentencing magistrate can always, and almost does always, award a judgement against the defendant.  But payment of those amounts does not have to always exist under the threat of incarceration.  The fact is that you are always going to have these types of poor-excuses for citizens causing problems and cheating people out of money.  Every community has them.  There’s really nothing we can do about it that is worth the price.

- John H. Bryan, West Virginia Attorney

It’s not our fault…. Civil Liability of West Virginia Police Officers/Departments in Pursuit Situations

In this morning’s Beckley Register-Herald, there was an article about a West Virginia State Police pursuit involving an ATV.  Apparently there was undisputedly a pursuit of an officer in a cruiser, chasing a man on an ATV.  Also undisputed, at some point the ATV wrecked and the man was killed.  Where the issue lies is, did the wreck occur during the pursuit, or had the officer abandoned the pursuit, after which the man wrecked on down the road?  And could the West Virginia State Police be liable for a man fleeing on an ATV only to accidentally kill himself in the process?

The important fact is that the driver of the ATV was killed.  He had apparently stolen the vehicle, and thus had fled.  The end result is that this case is much, much different from a scenario in which a passenger on the ATV was killed, or some other potentially innocent third party.  I’m not going to comment on whether I think there is a case there or not for the deceased’ driver’s estate, but here is some helpful information for cases where the facts are slightly different:

This is a portion of the materials I prepared for a continuing legal education seminar that I presented in Charleston, West Virginia earlier this year which specifically deals with situations where innocent third parties are injured in car accidents resulting from police pursuit situations in West Virginia.  This deals with the liability aspects of the state or political subdivision rather than the liability of the fleeing suspect:

Most civil liability cases arising out of a pursuit situation involve collisions between the suspect and a third party.  It is well-settled in West Virginia that “[w]here the police are engaged in a vehicular pursuit of a known or suspected law violator, and the pursued vehicle collides with the vehicle of a third party, under W. Va. Code, 17C-2-5 (1971) (rules, privileges and immunities of authorized emergency vehicles), the pursuing officer is not liable for injuries to the third party arising out of the collision unless the officer’s conduct in the pursuit amounted to reckless conduct or gross negligence and was a substantial factor in bringing about the collision.” Syl. Pt. 5 Peak v. Ratliff, 185 W. Va. 548 (1991); See also Sergent v. City of Charleston, 209 W. Va. 437 (2001).

As with other types of police liability cases, employees of political subdivisions are individually liable for their grossly negligent or bad faith conduct.  However, there’s no need to name them personally, because pursuant to the West Virginia Governmental Tort Claims and Insurance Reform Act, their employer political subdivisions are already liable for damages due to the “negligent operation of any vehicle by their employees when engaged and within the scope of their authority,” W. Va. Code § 29-12A-4(c)(1) and (2), which encapsulates conduct in violation of the the Peak Criteria balancing test described below – which the Court describes as “negligent, wanton, or reckless.”  Note that if a political subdivision employee officer is named personally in the complaint, there may be a circumstantial argument that the plaintiff believes the officer was acting outside the scope of employment – leading the insurer to potentially issue a reservation of rights.  With respect to state employees, i.e., troopers, they may be named personally without the same limitations, and their conduct will be governed by the Peak Criteria discussed below.

Therefore, with respect to state employees, such as State Police officers, the applicable standard of care is W. Va. § 17C-2-5 and it’s interpretation in the Peak Critera.  The standard of care with respect to deputy sheriffs and municipal officers is both the West Virginia Governmental Tort Claims and Insurance Reform Act and W. Va. Code § 17C-2-5.  For these purposes, the phrase “reckless disregard for the safety of others, as used in W. Va. Code § 17C-2-5, is synonymous with gross negligence.” Peak, 185 W. Va. at 552.

West Virginia Code § 17C-2-5 governs the privileges and immunities of police officers who are driving authorized emergency vehicles in pursuit of actual or suspected violators of the law, which provides:

(a) The driver of an authorized emergency vehicle . . . when in the pursuit of an actual or suspected violator of the law . . . may exercise the privileges set forth in this section, but subject to the conditions herein stated.

(b) The driver of an authorized emergency vehicle may:

(1)      Park or stand, irrespective of the provisions of this chapter;

(2)     Proceed past a red or stop signal or stop sign, but only after slowing down as may be necessary for safe operation;

(3)     Exceed the speed limits so long as he does not endanger life or  property;

(4)     Disregard regulations governing the direction of movement of [or]  turning in specified directions.

(c)     The exemptions herein granted to an authorized emergency vehicle shall apply only when the driver of any said vehicle while in motion sounds audible          signal by bell, siren, or exhaust whistle as may be reasonably necessary, and when the vehicle is equipped with at least one lighted flashing lamp as authorized by section twenty-six [§ 17C-15-26], article fifteen of this chapter which is visible under normal atmospheric conditions from a distance of five hundred feet to the front of such vehicle, except that an authorized emergency vehicle operated as a police vehicle need not be equipped with or display a warning light visible from in front of the vehicle.

(d)      The foregoing provisions shall not relieve the driver of an authorized emergency vehicle from the duty to drive with due regard for the safety of all persons, nor shall these provisions protect the driver from the consequences of his reckless disregard for the safety of others.

In interpreting W. Va. Code § 17C-2-5, the West Virginia Supreme Court adopted the following factors to consider in analyzing whether the pursing officer’s conduct was negligent, wanton, or reckless (“The Peak Criteria”): seriousness of the law violation, whether the suspect escaped during a previous pursuit, whether weapons, drugs, stolen property, or kidnap victims could be present, whether the pursued vehicle is stolen, whether the officer is familiar with the road and its attributes, the weather conditions and visibility, the officer’s degree of caution in relation to the speed of the pursuit, whether pedestrians are present, the amount of traffic, the length of the pursuit, whether the officer “forced the pursuit” by attempting to overtake the suspect or force the suspect off the road, whether the officer fired a weapon and caused the suspect to panic.  Specifically, the Peak Court reasoned:

Trooper Ratliff and Corporal Fulknier were confronted with a serious law violator who had escaped capture in a vehicular pursuit the previous evening. The officers knew of Mr. Akers’ past record and the fact that the vehicle he abandoned on September 14, 1987, contained a weapon and drugs. Both vehicles driven by Mr. Akers on these two days were stolen. The officers were familiar with the road on which the pursuit was conducted. There was good visibility during the chase and no inclement weather which would make the road hazardous. Even though the speed was estimated at between 60 and 100 miles per hour, the officers were careful to slow down when passing cars. There were no pedestrians, and the traffic was moderate. The pursuit lasted only a brief period of time. It does not appear that the officers forced the pursuit by attempting to overtake Mr. Akers or by forcing him off the roadway. Neither officer attempted to fire his weapon, an act which might cause a fleeing suspect to panic. When Mr. Akers crossed the center line and drove into the filling station where the collision occurred, the officers were not in sight.

Peak, 185 W.Va. at 558, 408 S.E.2d at 310.

There also may be a proximate cause issue to deal with where you have a collision caused by the criminal behavior of the pursued suspect.  This issue was discussed by the West Virginia Supreme Court in Sergent v. City of Charleston, 209 W. Va. 437, 549 S.E.2d 311, where the Court noted that, given that proximate cause must be proven in a personal injury negligence action, “[t]he proximate cause of an injury is the last negligent act contributing to the injury and without which the injury would not have occurred.” Id. (citing Syl. Pt. 5 Hartley v. Crede, 140 W. Va. 133 (1954), overruled on other grounds).  But, “a tortfeasor whose negligence is a substantial factor in bringing about injuries is not relieved from liability by the intervening acts of third persons if those acts were reasonably foreseeable by the original tortfeasor at the time of his negligent conduct.” Syl. Pt. 13, Anderson v. Moulder, 183 W. Va. 77 (1990).  But, “generally, a willful, malicious, or criminal act breaks the chain of causation.” Yourtee v. Hubbard, 196 W. Va. 683, 690 (1996).

In the Sergent case, the Court held that the intervening criminal acts of “pursuing undercover officers, firing at them, fleeing from the police at high speed, and swerving off the road and onto the berm” were intervening acts which were not foreseeable by the officers involved, thereby “breaking the chain of causation which originally began with their arguably negligent conduct and relieving them, and their employers, of any liability.” Sergent, at S.E. Page 320-21.

Note, in the Sergent case, the plaintiff had proffered an affidavit written by a Maryland State Police officer giving an opinion that, based upon his professional experience, that the actions of the defendant officers

“departed from the standard of professional police conduct, so as to constitute gross negligence, and wanton and reckless conduct on their part, which proximately contributed to the incident causing the death of David Sergent, to include, but not necessarily limited to . . . their high speed pursuit . . . without breaking off the same prior to reaching the congested area; and by otherwise failing to utilize accepted national standards for bringing a fleeing suspect’s vehicle to stop . . . [f]ailing to abide by the Charleston Police Department’s own policies and procedures pertinent to: a. Planning and executing their apprehension of the suspect Jerome Thomas; b. The protection of life during vehicular pursuit; c. Breaking off vehicular pursuit for the public safety; and d. Rendering aid to an injured pedestrian . . . 6. Their failure to abide by and adhere to standards of professional police conduct, such as those contained in the International Association of Chiefs of Police, Inc., Model Policy on Vehicular Pursuits.”

The Court held that no rational jury could find that the conduct of [the officers] . . . was wanton or reckless.  Regarding Sergeant Miller’s affidavit, the Court noted that:

The bulk of Sergeant Miller’s affidavit concerning the officers’ conduct during the vehicular pursuit amounts to nothing more than mere allegations. The affidavit opines that the officers failed to follow applicable local, national and international police standards and failed to protect life during the vehicular pursuit. But without pointing to specific tortious conduct and showing how this conduct caused the suspects’ collision with the decedent, these allegations are wholly insufficient to support a negligence action. Stripped of these allegations, the appellant’s claim is essentially that it was negligence for the officers not to terminate their pursuit prior to the decedent’s death. We reject this claim as being contrary to our law.

Sergent, at S.E. Page 320-21.

- John H. Bryan, West Virginia Attorney

Mark Bennett’s “Nike Rule” for jury selection (and 15 others) [updated 8/24/09]

When Mark Bennett announced a week or so ago that he had 16 simple rules for jury selection, the first of which began with “The Nike Rule,” I anxiously awaited the specifics which were to arrive subsequently.  Well, he did post the details on “The Nike Rule,” which essentially is this:

You have to “just do it,” rather than planning out your questions or taking an overly logistical or tactical approach to it.

Don’t worry, don’t think about it, don’t plan your next question. Forget your script, forget the prosecutor, forget the judge, and talk with the people. The time for worrying and thinking and planning, for scripts and prosecutors and judges, is past. There is nothing more that you can do to be prepared for this moment.

I have found that I perform best in a criminal jury trial when I do this throughout the trial.  Rather than be overly logistical, I like to listen, and then when it is my turn to question a witness, or to give a closing argument, I just get up and let the words flow.  I think it is the most sincere and passionate way to advocate.  And sincerity and passion breeds results – at least in my opinion.  But of course, you can only do this when you are intimately knowledgeable about the facts of the case.

Certainly I agree that this approach is the best way to conduct the voir dire process.  When trying a jury trial, credibility is king, and if from the beginning you have to get the jurors to, not necessarily like you, but to respect what you say.  You have to build and maintain your credibility with them.  The best way to do that is to start the trial off by talking to them for just about as long as the judge will let you, and educating them about the process and the ultimate importance of their immediate responsibilities.  And if you can make them laugh a couple of times it doesn’t hurt.  This is especially effective in those situations where the prosecutor stands up and says, “no questions, judge,” and let’s the defense do all the talking, which for some reason I have encountered several times.  This has always baffled me.  Why wouldn’t you want to at least build a rapport with the jury?

Hopefully the outcome is that you get to know them better, and they get to know you.  Then you have something to go off of when it comes down to the choice between juror no. 5 and juror no. 9, which may seem arbitrary, but which also may mean the difference between liberty and imprisonment for your client.

I look forward to hearing what Mark’s second rule, “The Blind Date Rule,” is.

UPDATE: “The Blind Date Rule” has now been posted.

Essentially the advice is to treat jury selection like a blind date with 60 people (or unfortunately, in West Virginia, more like 38 to 40 people).  Bennett explains his thinking:

Someone, thinking they might be a match, has put two parties in a room together. One party—the lawyer—has some desire to be there. The lawyer has some idea of a desired outcome (I know, I know: I’m a hopeless romantic). Neither party knows much about the other. The lawyer wants to learn about each juror (to find out if he or she is a suitable mate) while persuading him or her that the lawyer is likable, and thus a suitable match as well.

It’s always extremely interesting to get advice from another criminal defense attorney who actually tries cases and wins – at least some of the time (no real criminal defense lawyer wins all the time).  There is a right way (or rather many different right ways) and a wrong way to try a criminal case.  Many would argue that jury selection is the most important part of the case.  It’s also the most unpredictable part, and the most likely part to absolutely blow up in your face.  But it works the other way as well, and you can really achieve a lot for your client.

It seems to me that the trick always is creating some sort of connection between yourself and the jury, and actually getting the point where you can have a conversation with them.  During most of the trial, the conversation is mostly indirect and one-way.  But during jury selection, you can have a two-way conversation, and it makes sense that it is just like any conversation you have outside the courtroom.

I like the way of looking at it like a blind date.  Not that I have ever been on a blind date, but I assume that you walk a fine line between cutting the tension and breeding contempt.  I also suppose that some lawyers, like many in the blind-dating world, no matter how hard they try, are just always going to be awful at this….  Again, I love it when people share advice on how they have won criminal jury trials in the past.

UPDATE – 8/24/09:

The Shrek rule for jury selection, now explained, makes sense.  Though it befuddles me to imagine how he thought of this, other than if it was on his mind as he was watching Shrek…  I think that one of the by-products of being a trial lawyer, is that your mind never stops analyzing issues related to pending cases – for better or worse – usually worse.  I know that I would pay any amount of money for a switch that turned off lawyer-related thoughts from passing through my brain the moment I stepped out of my office for the day  But it will never happen.  Nevertheless, the gist of the rule comes from this scene in Shrek:

[They are walking through the forest and Shrek belches....]

DONKEY:

Shrek!

SHREK:

What?  It’s a compliment.  Better out than in, I always say. (laughs)

DONKEY:

Well, It’s now way to behave in front of a princess.

[Then, Fiona belches.]

Bennett notes that:

The Shrek Rule dictates that the lawyer should, rather than trying to shut up (or, God forbid, not listen to) the people who have views that would be unhelpful in jurors, draw those people out and encourage them to share and expand upon their views.

How? Listen attentively (and actively, Dr. SunWolf), thank them, and ask how many others agree. The more people agree with him, the better: better out than in.

It’s always an odd moment in jury selection when one prospective juror says, “yeah I know the defendant, and he’s a no good piece of garbage like the rest of his family, and I fear for my children unless he’s locked away for good.”  You could probably write a book on the proper reaction to that happening.  But better during voir dire than in the jury room.  I have experienced a case where almost that exact phrase was said for the first time during jury deliberations, and only after the verdict did the defense lawyers find out about it.  Of course, when this particular juror was asked by the judge whether he knew the defendant, he never spoke up.  But that is another issue itself.  At least when you get that out of him during jury selection, you have the opportunity to (1) get the guy excused for cause; and (2) rehabilitate your client by exposing the source of the guy’s animosity as incredible and irrelevant.  And, as a bonus, you may get others to agree with him and get them off as well.

The 4th Rule is the 90/10 Rule, which basically means listen 90% of the time and talk only 10%.  This is probably the easiest rule to remember, yet the most difficult to accomplish.  In my experience, it can get surprisingly difficult to get people talking – especially when things turn personal.

Bennett has now also posted his 5th Rule, the MacCarthy Rule, named after a Chicago public defender who said “talk in a courtroom like you would talk in a bar room.”  In short, don’t use “lawyerly” words and don’t condescend to the jury panel.  Or else, they get to burn you in the end.  This seems to be a corollary to the “be a nice person” rule, which I would add to the list.  We all know people who are nice people, and we all know jerks – whether they realize we know or not.  I believe that being a sincerely nice and friendly person will help the jurors like and trust you, while, like the rest of us, they will see through a facade of friendliness put before them by a world class jerk.  And we usually like to help those we like, and we generally don’t mind sticking it to those we think are jerks.

- John H. Bryan, West Virginia Attorney.

Ashcroft v. Iqbal and Supervisory Liability in federal civil rights actions

As was discussed at Crime & Federalism, there was a recent US Supreme Court decision – Ashcroft v. Iqbal – which drastically changes a component of most civil rights actions – “supervisory liability.” Generally, when police officers/departments are sued for civil rights violations under federal law (42 USC 1983), it is generally alleged that the supervisors are liable for the actions of the subordinate officers.  It used to be that this could be proven without actually having to prove that there was, for instance, a memo issued by the supervisor to engage in a civil rights violation.  It could be proven by showing any type of ratification or acquiescence.

In in City of Canton v. Harris, the Supreme Court held that supervisory liablity may attach where “policymakers were aware of, and acquiesced in, apattern of constitutional violations.”  But in Aschcroft v. Iqbal, the Court ignored Canton and held that:

[Plaintiff] argues that, under a theoryof “supervisory liability,” petitioners can be liable for “knowledge and acquiescence in their subordinates’ use of discriminatory criteria to make classification decisions among detainees.” That is to say, respondent believes a supervisor’s mere knowledge of his subordinate’s discriminatory purpose amounts to the supervisor’s violating the Constitution. We reject this argument. Respondent’s conception of “supervisory liability” is inconsistent with his accurate stipulation that petitioners may not be held accountable for the misdeed sof their agents. In a §1983 suit or a Bivens action—where masters do not answer for the torts of their servants—the term “supervisory liability” is a misnomer. Absent vicarious liability, each Government official, his or her title notwithstanding, is only liable for his or her own misconduct. In the context of determining whether there is a violation of clearly established right to overcome qualified immunity, purpose rather than knowledge is required to impose Bivens liability on the subordinate for unconstitutional discrimination; the same holds true for an official charged with violations arising from his or her superintendent responsibilities.

So now you have a situation where the Court says that supervisors will be accountable for their own conduct, but where they are not actually liable for their own conduct.  Yes, if they taser a 90 year old grandmother who is handcuffed in the back of a patrol car, they will be liable for that.  But if through inadequate supervision (hence the term “supervisor”) they allow their subordinates to do so without stopping them or otherwise “supervising” them, they are not accountable.

Regardless, this probably will not make much difference here in West Virginia since if you ask most defense attorneys in West Virginia, they can’t recall one case of a plaintiff ever even actually recovering on grounds of “supervisory liability” in a federal police liability action.  It’s just too much of an ancillary issue and too difficult to prove in most cases.

- John H. Bryan, West Virginia Attorney.

But can your lawyer impersonate Elvis?

 

 

 

 

 

 

 

 

 

 My wife and I are now two-time champions of the costume contest at Lewisburg, West Virginia’s Carnegie Hall “Fantasy” fundraiser, which was held on Saturday night.  This year’s party was themed as “Fantasy in White,” and so obviously we had to go as the “Hollywood Hotties,” aka, Elvis and Marilyn.  This is our second time winning.  Three years ago, we won “Fantasy Under the Big Top” as poodle trainers.  

 If it weren’t for those pesky Trial Court Rules that require a coat and tie, I believe I definitely could gain more prestige with jurors in this outfit.

In the name of “officer safety”

Rick Horowitz from Probable Cause had an interesting post regarding “officer safety” and the rights of motorists.  In essence, his theory, which has long been a pet peeve of mine, is that supposed “officer safety” is used to violate the rights of motorists.  If you have ever tried an “obstruction” case, you will hear the prosecutor ask officers who conducted a “traffic” stop questions about their training and “officer safety” and why they instruct persons to get out of the vehicle – or to not get out of the vehicle – or to put their hands in a certain place, and so on and so forth.  Many times this coincidentally coincides with the officer(s) subsequently finding something incriminating in the vehicle.  For example, here is a portion of transcript from an obstruction (among other things) trial:

7       Q   So you turned on your blue lights; right?           

8       A   Yes.                                                

9       Q   And the purpose of doing that is to tell the driver 

10  of the vehicle what?                                         

11       A   To pull over.                                       

12       Q   And, was it clear to you, that there was a driver   

13  of that truck, with the Florida tags; you should see the     

14  driver?                                                      

15       A   Yes.                                                

16       Q   Did you attend the State Police Academy before      

17  becoming a West Virginia State Trooper?                      

18       A   Yes.  All troopers are required to attend the       

19  Academy before —                                            

20       Q   And how long — how long is the Academy?            

21       A   It’s going to be for 30 weeks, equivalent to seven  

22  months.                                                      

23       Q   And, as part of your training, do you receive       

24  specific training in traffic stops?                          

Page 359 

1       A   Yes, we do.  Like a lot if training, they try to go 

2  over and over.  What the purpose of that is – they call it   

3  muscle memory – when you get into a high-stress situation,   

4  or your stress level elevates, whatever you practice, their  

5  theory is that you’ll just automatically — you’ll           

6  automatically do in a high-stress situation.                 

7       Q   And from your training, and experience as a West    

8  Virginia State Trooper, are traffic stops considered high-   

9  stress situations?                                           

10       A   Yes.  Through the training that we received,        

11  everything other than a known felony stop, we actually       

12  consider an unknown stop, which is an unknown risk.  Mainly  

13  because we don’t know the driver, we don’t know who’s in the 

14  vehicle or what’s in the vehicle.  So, yes, they all — all  

15  of them are considered high-stress and possible risk stops.  

16       Q   And, from your training at the Academy, and then    

17  after you were out of the Academy, were you taught, and      

18  trained, in what percentage of police officers — shootings  

19  of police officers occur during what should be routine       

20  traffic stops?                                               

21       A   Yes.  It’s actually a higher percent than I like.   

22  Actually, I believe the US Supreme Court had a case on it,   

23  referenced where up to 30 percent of actual police shootings 

24  occurred during routine police traffic stops.                

Page 360 

1       Q   Now, as a practicing Trooper, can you estimate how  

2  many traffic stops you have made a month, at this point?     

3       A   And I don’t do a lot of traffic, some’s a lot       

4  higher than this, but I usually pull over, I would say,      

5  between 25 to 35 cars a month, for various traffic reasons.  

6       Q   And when you make those traffic stops, do you       

7  follow the procedures that you were taught in your training  

8  at the West Virginia State Police Academy?                   

9       A   Yes, ma’am, every time.                             

10       Q   As to the particular procedures that you were       

11  taught, what is the goal, what’s the purpose of those        

12  procedures that you are to follow in making a traffic stop,  

13  as a State Policeman?                                        

14       A   The main thing is, basically, risk reduction, for   

15  the safety of everybody there.                               

16       Q   And does that include safety of the officer?        

17       A   That includes the safety of the officer, safety of  

18  whoever we’re pulling over in the vehicle, along with the    

19  public safety.                                               

20       Q   And what are the risk factors in the traffic stop,  

21  that your procedures are designed to reduce?                 

22       A   With that, especially, and probably most of you can 

23  relate to seeing videos of being beside the roadway.  First  

24  off, it’s very dangerous for traffic stops, for other        

Page 361 

1  traffic coming by, just ’cause you’re in such close proximity 

2  to the traffic flow; that, in one, is dangerous.             

3       Two, like I said, you don’t never know who the driver   

4  is, or who you’re pulling over.  Mainly, if you’re doing a   

5  traffic stop – and, mostly, I’m going to give somebody a     

6  warning, but the driver don’t know that – and if it’s        

7  somebody else, it could be very dangerous.  Or, if they      

8  robbed a bank, thirty minutes down the road, and I’m unaware 

9  of that, they might have a gun, or something that could      

10  actually hinder myself during this stop, which I’m unaware   

11  of.                                                          

12       Q   And what about the flight risk; could you explain   

13  to the jurors the risk of flight when you have an unknown    

14  traffic stop?                                                

15       A   Yes.  And it is highly likely that, you know, even  

16  when I get out of the vehicle, that the car might pull off.  

17  Several occasions, you go to approach the vehicle and        

18  somebody – I mean, I’m sure you’ve seen it on TV – jumps out 

19  of the vehicle and takes off running.  So — and if I        

20  actually approach the vehicle and, let’s say, they are       

21  wanting to cause me harm, and they are able to do some kind  

22  of harm from me, it’s very possible for them just to take    

23  off without any help to myself.                              

24       Q   When you pull over the vehicle, either because it   

Page 362 

1  — the driver is a suspect in a crime, or because of a       

2  traffic violation, when you pull over a vehicle, is there    

3  information that you are supposed to relay, and also         

4  information that, by your training and experience as a West  

5  Virginia State Trooper, you are supposed to be receiving?    

6       A   Yes, ma’am.  The start off, every time we perform a 

7  traffic stop, we always want to notify our dispatcher –     

8  advise ‘em of our location, that we’re actually on a traffic 

9  stop, so they can check on us and know what we’re doing.     

10  Some information you want to give to start off with is color 

11  of the vehicle, like I said, the location of where the stop  

12  is.  And also important, is the license plate of the         

13  vehicle.  With the license plate, they’re able to return the 

14  vehicle it’s supposed to be on, who owns the vehicle.  And   

15  they also can check to see if that license plate or vehicle  

16  has been stolen, or is a stolen vehicle.                     

17       Q   And do you do that, as much as possible, unless you 

18  are obstructed or prevented from doing that, every time you  

19  make a traffic stop?                                         

20       A   Yes, ma’am.                                         

21       Q   Now, do you — are there standard procedures, that  

22  you learned in your training, and you practice in your 25 to 

23  30 traffic stops a month, first of all, as to whether or not 

24  you want the driver to stay in the vehicle, or get out of    

Page 363 

1  the vehicle?                                                 

2       A   Yeah.  Through our training, and it might vary from 

3  department to department, but what we want is the driver to  

4  actually stay in the vehicle.                                

5       Q   And why is that, explain that, if you would?        

6       A   The reason to have them stay in the vehicle, it’s   

7  more of a con — we have more control if they’re in the      

8  vehicle.  For the safety issue, like I said, to mention      

9  first, it’s a — a lot of times, we’re on the highway,       

10  interstate, busy roads, if the driver’s in the vehicle, it’s 

11  a lot less likely that he’s going to get hit by a passing    

12  car.  Two, we’re able to approach the vehicle and kind of    

13  keep an eye on the driver and see what he’s doing.  Where,   

14  if he gets out of the vehicle he could either (a) run, or do 

15  something else, which would make us have a lot less control  

16  over the driver.                                             

17       Q   Are you even taught, and trained, to stand in a     

18  particular relation to the driver’s door?                    

19       A   Yes.  And, as we’re taught, when we’re approaching  

20  a vehicle – and if you ever — anyone’s ever got pulled      

21  over, you maybe even noticed this and wondered – I always    

22  take my hand and touch the back of the vehicle in case       

23  something happens, you know, and the driver leaves.  Maybe   

24  somebody might be able to put my connection with that        Page 363 

1  the vehicle?                                                 

2       A   Yeah.  Through our training, and it might vary from 

3  department to department, but what we want is the driver to  

4  actually stay in the vehicle.                                

5       Q   And why is that, explain that, if you would?        

6       A   The reason to have them stay in the vehicle, it’s   

7  more of a con — we have more control if they’re in the      

8  vehicle.  For the safety issue, like I said, to mention      

9  first, it’s a — a lot of times, we’re on the highway,       

10  interstate, busy roads, if the driver’s in the vehicle, it’s 

11  a lot less likely that he’s going to get hit by a passing    

12  car.  Two, we’re able to approach the vehicle and kind of    

13  keep an eye on the driver and see what he’s doing.  Where,   

14  if he gets out of the vehicle he could either (a) run, or do 

15  something else, which would make us have a lot less control  

16  over the driver.                                             

17       Q   Are you even taught, and trained, to stand in a     

18  particular relation to the driver’s door?                    

19       A   Yes.  And, as we’re taught, when we’re approaching  

20  a vehicle – and if you ever — anyone’s ever got pulled      

21  over, you maybe even noticed this and wondered – I always    

22  take my hand and touch the back of the vehicle in case       

23  something happens, you know, and the driver leaves.  Maybe   

 

Page 364 

1  vehicle.                                                     

2       As I’m continuing to approach the driver, we can always 

3  look through the back glass and the windows, see if he’s     

4  maybe reaching under his seat to grab a firearm or trying to 

5  hide something he’s not supposed to have.  With standing at  

6  the vehicle, we always like to stand right behind the driver 

7  door, which allows us to have a — the best view we can of   

8  inside the vehicle, to check to see if there’s anything      

9  that’s not supposed to be there, or any weapons that the     

10  driver might be able to reach and grab.                      

11       Q   And would it be fair to say that, obviously, any    

12  time the driver is allowed out of the vehicle, that          

13  increases the flight risk, and the risk to the public?       

14       A   Right, yes.                                         

15       Q   Then what about your training and experience as a   

16  State Policeman, what do you instruct – order – the driver   

17  to do, if he gets out, as to his hands?                      

18       A   And, on traffic stops, it happens, sometimes the    

19  driver will go to get out of the vehicle.  Order them to get 

20  back in the vehicle and, usually, they comply with that      

21  order, and then wait for me to approach ‘em.                 

22       Q   And if a driver gets out of the vehicle against     

23  your orders, what do you tell them — where do you want his  

24  hands?                                                       Page 364 

1  vehicle.                                                     

2       As I’m continuing to approach the driver, we can always 

3  look through the back glass and the windows, see if he’s     

4  maybe reaching under his seat to grab a firearm or trying to 

5  hide something he’s not supposed to have.  With standing at  

6  the vehicle, we always like to stand right behind the driver 

7  door, which allows us to have a — the best view we can of   

8  inside the vehicle, to check to see if there’s anything      

9  that’s not supposed to be there, or any weapons that the     

10  driver might be able to reach and grab.                      

11       Q   And would it be fair to say that, obviously, any    

12  time the driver is allowed out of the vehicle, that          

13  increases the flight risk, and the risk to the public?       

14       A   Right, yes.                                         

15       Q   Then what about your training and experience as a   

16  State Policeman, what do you instruct – order – the driver   

17  to do, if he gets out, as to his hands?                      

18       A   And, on traffic stops, it happens, sometimes the    

19  driver will go to get out of the vehicle.  Order them to get 

20  back in the vehicle and, usually, they comply with that      

21  order, and then wait for me to approach ‘em.                 

22       Q   And if a driver gets out of the vehicle against     

23  your orders, what do you tell them — where do you want his  

24  hands?                                                       

Page 365 

1       A   If a driver gets out of the vehicle, and he’s not   

2  replying, of course, the stress level and the threat level   

3  increases, first because he’s not obeying my order, which is 

4  a lawful order.  Second, with the hands, I don’t want ‘em    

5  anywhere near the coats or pockets, where they could reach   

6  — or anything that might cause me harm.  Either up in the   

7  air where I can see ‘em, up on the vehicle where I know he   

8  can’t reach and grab anything to — that might harm myself   

9  or any public.                                               

10       Q   Was there a phrase that you were taught, that your  

11  instructors at the Academy used, to emphasize the need to    

12  keep the suspect hands up in the air or on a car?            

13       DEFENSE ATTORNEY:  Your Honor, I’m going to object to    

14  the leading nature of this —                                

15       THE COURT:  Overruled; 611 allows me to permit this     

16  type of preliminary stuff.  I’m going to allow it; go ahead. 

17       THE WITNESS:  Yes, as the — as the instruction — in   

18  the Academy, they often teach us, they always tell us that   

19  feet can hurt you, but hands can kill you.  Basically,       

20  meaning just, you know, being kicked and stuff can hurt you, 

21  but the hands can always grab a weapon such as a knife or a  

22  firearm.                                                     

23  PROSECUTOR (resuming):                                    

24       Q   Now, on the evening of June 8th of ‘07, after you   

Page 366 

1  turned on your blue lights, can you tell the jury what did   

2  the defendant do?    

As I said, this has long been a pet peeve of mine.  Of course we all respect law enforcement officers and acknowledge that they have a sometimes dangerous and difficult job – just like many other professions.  However, they chose to be law enforcement officers.  And they chose to pull someone over for a “traffic” violation.  That they are worried, or trained to be worried, about their own safety, should not make it okay for them to treat someone like a criminal.  It’s one thing if you are pulling over a bank robbery suspect, but if you are pulling someone over for going 6 mph over the limit, you should not have your hand on your gun.  You should not shout at someone as if they are armed and dangerous.  Why should someone pulled over for a traffic violation have to keep their hands on the wheel?  What can be more demeaning that to be treated like a criminal as a practice and procedure of a law enforcement agency?  I would venture to say that more people are probably wrongly shot by law enforcement officers because they are jumpy due to all of this “training” than law enforcement officers who are actually shot by a traffic-stop motorist (especially in high crime areas where “traffic” stops are mostly investigatory pretext stops).  Don’t believe me?  Google it.  And surely, more officers are hit by passing motorists distracted by the emergency lights than who are shot.  And that is unfortunate, but it was their choice to engage in a profession where they have to stand on the side of the road and encounter strangers in cars.  That is just a risk that comes with the job.  It is not okay to feel safer by violating the rights and respect of innocent persons.

And it definitely is not okay to abuse the purpose of “officer safety” in order to assist in more efficient criminal prosecution, which is done in mainly two ways, such as was the case in the above-transcripted case: (1) to achieve an initial arrest of the person in order to question them and inventory/search their vehicle, and (2) to throw in yet another charge to try the suspect on and/or use for plea negotiations.  

Note: the defendant in the above-transcripted case was found not guilty of obstruction, despite the lengthy oratory of the prosecutor and trooper.

 - John H. Bryan, West Virginia Attorney.

Cops and Prosecutors in Southern West Virginia – Part Deux

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

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

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

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

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

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

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

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

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

But there was more.

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

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

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

Well guess who did have both of the videos….  

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

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

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

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

Res ipsa loquitur – the thing speaks for itself.

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

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

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

Hopefully I’ll get to Part III sometime soon.

 - John H. Bryan, West Virginia Attorney.

NC Case Illustrates Abuses of Inmates

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

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

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

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

 - John H. Bryan, West Virginia Attorney.

No pun intended….

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

 - John H. Bryan, West Virginia Attorney.

Interesting Appeal Filed to the West Virginia Supreme Court of Appeals

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

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

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

View this document on Scribd

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

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

He also includes a few of my favorites:

Mark Bennett – Houston Criminal Defense Attorney Blog

Texas Grit’s for Breakfast Blog

Jamie Spencer’s Austin Criminal Defense Blog

Brian Tannebaum – Miami Florida Criminal Defense Blog

Scott Greenfield – New York Criminal Defense Attorney

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

 - John H. Bryan, West Virginia Attorney.

Are civil defense attorneys in WV amicably-challenged?

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

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

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

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

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

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

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

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

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

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

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

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

WV Supreme Court Acquits Woman Convicted of Murder

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

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

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

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

Syllabus Point 3 of the Opinion held that: 

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

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

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

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

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

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

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

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

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

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

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

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

(1927), is expressly overruled. 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(1909), is expressly overruled. 

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

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

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

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

 

- John H. Bryan, West Virginia Attorney

Shuttle returning to Florida

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

 

History applied to lawyering – Part I – George Rogers Clark

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 - John H. Bryan, West Virginia Attorney.

Double Dipping Mall Officers

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

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

 - John H. Bryan, West Virginia Attorney.

Arizona v. Gant

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

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

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

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

 - John H. Bryan, West Virginia Attorney.

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

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

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

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

Except…

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

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

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

Wrong.

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

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

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

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

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

 - John H. Bryan, West Virginia Attorney.

Venue Issue Decided in Flanary Case

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

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

 - John H. Bryan, West Virginia Attorney.

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Laws of Search and Seizure in West Virginia

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

Arrests

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

Arrest Warrants

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

Warrantless Arrests

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

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

Jurisdiction

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

Search and Seizure

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

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

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

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

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

Vehicles

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

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

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

Pedestrian Stops

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

Computers

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

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

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

 - John H. Bryan, West Virginia Attorney.

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

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

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

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

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

 - John H. Bryan, West Virginia Attorney.

2009 National Champions….

Proposed West Virginia DUI legislation before Judiciary Committee

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

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

 - John H. Bryan, West Virginia Attorney.

Back when men were men…

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

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

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

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

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

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

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

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

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

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

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

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

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

 - John H. Bryan, West Virginia Attorney.

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

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

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

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

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

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

 - John H. Bryan, West Virginia Attorney.

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

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

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

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

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

 - John H. Bryan, West Virginia Attorney.

Do prosecutors really believe law enforcement are angelic?

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

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

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

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

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

 - John H. Bryan, West Virginia Attorney.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 - John H. Bryan, West Virginia Attorney.

Murder Case Appeal Denied

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

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

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

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

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

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

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

 - John H. Bryan, West Virginia Attorney.

Why not just cut out the middle man?

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

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

…

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

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

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

 - John H. Bryan, West Virginia Attorney

Computer Crimes and Steganography

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

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

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

 - John H. Bryan, West Virginia Attorney.