For those of you who like to follow cases and not just read headlines about the allegations, I wanted to provide an update on the Matthew Cole case. It was recently settled, having just been finalized yesterday. It was originally filed in December 13, 2012. That is about average from filing to settlement/trial. It was scheduled to go to trial on March 13, 2014.
All discovery had been completed, including many depositions. And all dispositive motions, and pretrial motions, had been briefed. So anyone thinking that these are quick and easy cases to settle would be mistaken. Most of these cases (and this one was certainly no exception) are hard-fought and highly contested.
Apparently a West Virginia lawyer was charged with being an accessory after-the-fact in relation to a New Year’s Eve shooting in Charleston, which is a felony. This was reported by WCHS, as well as the Charleston Gazette. Allegedly, after his friend shot a guy after an argument over ordering a pizza, the lawyer took the guy’s cell phone and instructed him to run. And then he was allegedly uncooperative with police when they asked him the identity of the shooter.
It was reported that all of this can be viewed on surveillance footage:
“Conrad is in trouble, because police said he can clearly be seen on surveillance video taking Underwood’s cell phone, which is considered evidence, from the scene and telling the suspect to run.”
So my initial thought is, how can you view what someone is saying on surveillance footage? You can’t. We pretty much know the footage does not contain audio – since that in itself would constitute felony illegal wiretapping in West Virginia, since it would be capturing conversations for which no party has consented.
The police are the first to complain about surveillance footage when they are accused of misconduct, noting that you can’t tell everything from the video. Well you certainly cannot tell what someone is saying to another. How does a video prove that the lawyer was instructing the shooter to flee? And if you can view the cell phone being handed to the lawyer, how can you tell that the lawyer asked for it. And if a cell phone is handed to you in such a situation, does that make you a felon? What if you are a lawyer potentially representing the individual. Can you preserve evidence yourself? Are you compelled to turn over your own evidence to police at their demand? The West Virginia Rules of Criminal Procedure don’t provide for that. In fact, a criminal defendant is not compelled to provide discovery to the prosecution until and unless he or she requests discovery from the State.
As with any of the decaying “cities” in this country where you have arrogant and hypocritical leadership, the City of Charleston was quick to jump into attention-whore mode and to engage in their first attempts at poisoning the jury pool:
“It’s really surprising that someone in a position of authority, and all that he is responsible for, to participate in this criminal conduct,” Lt. Steve Cooper, with Charleston police said.
. . .
Charleston Mayor Danny Jones said he plans to file an ethics complaint with the state bar, against Conrad.
What ever happened to “innocent until proven guilty”? Is it ethical for a police officer, or mayor, to go onto TV and tell the public that an individual who has been charged, and who is presumed innocent, has committed criminal conduct? Or that the individual has abused a position of authority? Or that the person is unethical?
I’m not passing judgment on the lawyer’s actions one way or the other since I don’t know all of the facts. After all, isn’t that what police say when one of their own are accused of misconduct? Well, it’s under investigation and we don’t know all of the facts. So what if he did take the guy’s cell phone and told him to run? What negative consequences did that have? Who is a victim to the lawyer’s alleged crime? None and nobody.
There was an article yesterday in the Charleston Gazette about a gun owner in Logan, WV who stopped a home invasion in progress at his neighbor’s home.
He shot one of the burglars, and held the other at gunpoint until police arrived. This brings up a common topic of interest to people – especially in West Virginia, which has one of the largest percentages of gun owners per capita (we are no. 5 I believe).
When can you legally shoot someone in a home invasion scenario?
In the end, it comes down to whether or not you reasonably believe that you, or someone else (anyone else – it doesn’t have to be a family member) is in imminent danger of death or serious bodily harm. People tend to get obsessed with the “castle doctrine.” Just understand that to mean, that if you are in your home, you have no legal obligation to run out the back door, if given the opportunity. It all comes down to whether you believe you, or someone else, is going to be killed or seriously hurt if you don’t take action.
There is no guarantee that, even if you do believe you’re about to be killed, and you fire your weapon, that the shooting will be deemed justified. Your fear must have been reasonable – based on something that your peers would likely also consider as significant enough to cause them fear as well.
Everyone should think about these types of things ahead of time. You should draw a mental line in the sand regarding when you shoot, and when you do not shoot. What is enough? What if someone in a ski mask is lurking outside your house? What if someone in a ski mask is outside your house with a gun in their hand? What if someone is burglarizing your vehicle in your driveway? What if someone is burglarizing your neighbor’s home? Or car?
There is not necessarily a right answer for these types of scenarios. But you should never pull the trigger unless you really do fear for a life. It’s not that they don’t deserve a dirt nap. If it were up to me, all thieves entering your property at night should be executed. But unfortunately it’s not.
Many people in West Virginia do believe that if someone is breaking into their car at night, that they can run outside and shoot them. Unfortunately, here we are not allowed to use deadly force in order to protect property. For this reason, electric companies are not supposed to keep lines active for the sole purpose of deterring trespassers. Now if the car burglar approaches you, or if he has a weapon and has the imminent ability to use it against you – that is different.
1. It’s always going to be more difficult to justify a shooting where the person shot was “unarmed”. I knife, gun, or even a stick could count as a weapon. It is never a good idea to provide your own weapon after the shooting. The facts are what they are. Never try to change them.
2. It’s always going to be more difficult to justify a shooting where the person shot was shot in the back. This would indicate that the person was walking, or running, away from you. That causes a problem because at that point it’s hard to argue that your fear was reasonable when the threat was leaving. It’s also hard to argue that the threat was imminent. But, if the person shot was in your house, it’s probably going to be a good shoot, because the threat was still in your home. Generally when we shoot someone, our natural tendency is to keep shooting. So there have been cases where the first shot was in the front of the person’s body, and several more shots went into the guy’s back as he turned to run away. Good shoot, but bullets in the back are always going to make things more difficult.
3. In your home, it’s game on. Like I said, draw a line in the sand. If someone maliciously invades your home, you generally can eliminate the threat with extreme prejudice. But it still has to be reasonable. You wouldn’t want to shoot a drunk neighbor who wandered in the wrong house – or a family member sneaking back in from a night of partying. For this reason, always have a good home defense light. You have to know your target – and what’s behind it.
It’s outside the home, where most of the grey areas live. So be very careful venturing outside your castle with a gun in the dark of night. Know where your line in the sand is.
As for the shooting in the article, the 800 pound gorilla is the fact that was left out of the story. Did the shooter believe that the neighbors were in the home at the time he saw the attempted home invasion? If so, good shoot. If not, he may have a more difficult time due to the fact that we are not allowed to use deadly force in order to protect (only) property.
4. Lastly, all gun owners who anticipate ever having to use their firearms in self defense should get some formal training, such as in a defensive handgun class. A basic concealed weapons class does not qualify as training. This is me at a handgun class a couple of weeks ago. It’s a lot of fun, and it’s part of our obligation as citizens under the 2nd Amendment.
On November 26, the West Virginia Supreme Court of Appeals issued a decision in a suit filed by the Charleston Gazette (which I posted about back in November of 2010), to enforce a FOIA request initially sent by former Gazette police misconduct reporter Gary Harki. After the circuit court refused to allow the internal files to be produced, the Gazette appealed and ended up winning at the Supreme Court.
The opinion is available in .pdf format on the Court’s website here.
Essentially the Court ruled that state police internal investigation documents are subject to production through FOIA requests, so long as the investigation has been concluded, and the allegations involve official misconduct about which the public has a right to know. I’m summarizing.
This holding did not specifically address political subdivisions, i.e., counties and municipalities. However, I don’t see any legitimate reason for treating them differently under this case law.
On the filing of the lawsuit:
Prior to the filing of the lawsuit:
Well, I said I didn’t think I would be returning to Parkersburg. But wouldn’t you know it, I’m headed back over there. Here is yet another federal lawsuit filed by myself, and my co-counsel Paul Morrison, for yet another videotaped use of force out of Parkersburg, West Virginia. This is my fourth time there. This one was already in the news a few times. With the closure of the federal courthouse in Parkersburg, this case will be litigated out of the federal courthouse in Charleston. Maybe had we filed it a couple of days earlier . . . .
This is my 300th post, and unfortunately a sad one.
I was disappointed to see in the Charleston Gazette this morning that the federal courthouse in Parkersburg, West Virginia is closing up shop. I think I tried the last jury trial ever in that courthouse, which was the first trial there in around three years, if I recall correctly. The article says something to the effect that it couldn’t keep up with modern technology. Actually, we used all the modern technology which you would expect in a modern-day jury trial, including “ELMO” machines and video footage. They did have to bring the devices from Charleston for the trial – which was not a big deal.
One piece of modern technology which didn’t work there however, was the mute button on Judge Goodwin’s microphone. So he told the jurors to loudly talk amongst themselves whenever he said “beep” so that we could have side bar conferences. It worked amazingly well – in fact probably much better than a mute button. And everyone got a kick out of it.
The last day is this Friday. R.I.P. Parkersburg Federal Courthouse.
- Civil Liability
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