West Virginia Criminal Law Blog

From the Beckley Register-Herald:

3 charged in multimillion-dollar cattle scandal involving bank

Christian Giggenbach
Register-Herald Reporter

Ending months of speculation and rumors, the U.S. Attorney’s Office in Charleston filed criminal charges Wednesday against a businessman, a former bank president and a former bank board member for alleged crimes stemming from a multimillion-dollar cattle scandal in Greenbrier County involving First National Bank of Ronceverte.

Named in the information were Kevin Scott O’Brien of Ronceverte, Charles A. Henthorn of Lewisburg and G. Thomas Garten of Covington, Va. An information allows prosecutors to bypass a grand jury and usually indicates a defendant is cooperating with authorities.

O’Brien, 27, was charged with one felony count of frauds and swindles, according to court documents. O’Brien first made headlines in April 2006 when State Police began investigating the cattle broker after he filed a multimillion-dollar bankruptcy case.

Federal prosecutors say O’Brien brokered the sale of cattle in Greenbrier and Monroe counties and several other locations, including Virginia, Illinois, Nebraska and Texas, under the business names of Shamrock Farms and K&M Properties Investments.

Prosecutors allege O’Brien devised “schemes” to “defraud and obtain money by means of false and fraudulent pretenses” while selling cattle “at the expense of numerous farmers, banks and other business entities.”

The five-page criminal charge against O’Brien alleges in the spring of 2006 he under-reported his liabilities and distributed false financial statements to lenders and investors and “solicited and procured substantial sums of money” with the “false promise that he would invest the monies in specific cattle sale transactions.”

“It is further part of the scheme that (O’Brien) defrauded these various investors and lenders out of a total of approximately $4.2 million,” federal prosecutor L. Anna Forbes wrote.

O’Brien also allegedly engaged in “phantom herding” — selling the same group of cattle to multiple buyers — and pyramid schemes, where money from one investor is used to fund business dealings with another investor. Other allegations lodged against O’Brien include:

- Giving Henthorn, former First National Bank of Ronceverte president, bribes totaling approximately $10,000.

- Tendering worthless checks for large amounts of money.

- Directing banks to stop payment on checks for the purpose of quelling the investors’ mounting suspicions of fraud and to dissuade investors from reporting him to police.

- Engaging in check-kiting activities involving hundreds of thousands of dollars with various financial institutions to stave off financial disaster.

O’Brien could not be reached for comment Wednesday. If convicted, he faces a maximum sentence of 30 years in prison, with five years of supervised released and a possible $1 million fine.

Henthorn, who abruptly resigned as president and CEO of First National Bank of Ronceverte last June, was charged with one felony count of accepting bribes from O’Brien totaling about $9,700. Henthorn, a former bank examiner, had worked at the bank more than 10 years, starting out as a senior loan officer and vice president.

“(Henthorn in his capacity as bank president) did accept said payments by a customer … intending to be influenced in connection with business and transactions between (O’Brien) and the First National Bank,” Forbes wrote.

When reached by phone Wednesday, Henthorn refused to comment. Court documents indicated the bribe payments were paid in the fall of 2005 through December 2005.

Garten, who had served on the bank’s board of directors since 1999, resigned last July. Garten was charged with one felony count of aiding and abetting the bribes that O’Brien gave to Henthorn. The criminal charge did not state that Garten received any bribe money from O’Brien.

Garten, a Realtor, broker and auctioneer, owns Greenway’s Real Estate & Auction Co. and two car dealerships in Covington. When reached by phone Wednesday, he respectfully declined to talk about his pending charges.

“Everything will work its way out in the end,” he said.

Both Garten and Henthorn face maximum prison sentences of 30 years each, five years of supervised release and possible $250,000 fines.

First National Bank chair Ron Snyder, who was out of town Wednesday, told The Register-Herald by phone he had not yet seen the charges leveled against his two former bank associates, but was “relieved to see this finally out in the open.”

“We are happy that this has finally been filed and now the rumors can either be quashed or reinforced,” Snyder said. “We understand the only wrongdoing were by the actions of these two individuals and this bears that out because they are the only ones that were charged.”

But left in the wake are nearly a dozen individuals, banks and businesses that O’Brien allegedly defrauded for millions of dollars. Lewisburg lawyer Steve Hunter, who represents Karin Nelson — who claims O’Brien cheated her out of more than $200,000 — said there are still many unanswered questions that need to be addressed.

“There are still pending motions left in the bankruptcy case. I still don’t think we have gotten to the bottom of this whole story and we won’t know until O’Brien is questioned under oath by lawyers representing the victims,” Hunter said Wednesday. “We still don’t know whose cattle went where and there are a lot of people who are out of a lot of money.”

Creditors named in O’Brien’s bankruptcy case include The Bank of Monroe, United Bank and Farm Credit of Lewisburg. These alone total $2.5 million. During his initial bankruptcy filing, O’Brien stated he owed First National Bank nearly $400,000. One Virginia cattle dealer filed worthless check charges against O’Brien two years ago totaling 270,000.

In August 2006, O’Brien attended one bankruptcy hearing after skipping out on several others. At that time, he invoked his Fifth Amendment right against self-incrimination more than 100 times.

Hearings to accept pleas from the three men will most likely be set in the next five days.

Note: Since the three men who were charged were charged by information rather than by indictment through a grand jury, it indicates that all three have made plea deals with the government already. Indeed, speculation for months has been that all three of these characters had in fact already made plea agreements. It has been noted through the grapevine that one of the defendants either wore a wire or had a recorded telephone conversation with the other - ensuring his conviction. With all of the rumors flying around, it will be interesting to see which of them are true. The fact of the matter is that when you are charged federally, your chances of not going to prison are extremely, extremely low. So, it is safe to say that all of these guys are going to do time in the federal pen - and deservedly so. - John H. Bryan, West Virginia criminal defense attorney.

From today’s Register-Herald:

Baby, mother injured after car crash; driver charged with DUI, police say

Amelia A. Pridemore
Register-Herald Reporter

A Daniels woman allegedly under the influence of an inhalant crashed a car through a yard and two fences, went over and up two embankments and struck a building, injuring another woman and a five-month-old girl, Beckley police said.

Angel L. Stoots, 25, of Danmont Vista, was charged with DUI with injury, DUI with child endangerment, driving without a license and having no insurance, Cpl. Will Reynolds said. She was being held Saturday at Southern Regional Jail on $5,000 bond.

Stoots was in the driver’s seat of a 1998 Chevrolet Monte Carlo parked behind the Pagoda Motel on Harper Road Friday evening, Reynolds said.

An adult female passenger was in the front seat and the passenger’s 5-month-old daughter was in a child safety seat in the back.

Stoots was reportedly inhaling an unidentified “intoxicating substance,” Reynolds said. She claimed she passed out while the car was in gear and stepped on the gas pedal.

The Monte Carlo went across North Pike Street and into a resident’s back yard in the 1000 block of West Neville Street, Reynolds said. The car then tore down two fences and went over a six-foot embankment. After going through a resident’s parking spot and through grass, the car went up a three-foot embankment and struck a brick building in the same block of West Neville.

The passenger and her daughter were taken to Raleigh General Hospital, Reynolds said. The baby had a knot on her head and the passenger complained of head and back pain. Stoots was not hurt.

The passenger told police she was not involved in Stoots’ activities and that she tried to get herself and her child out of the car, Reynolds said.

Note: As a West Virginia criminal defense attorney, I usually lament that people are overcharged and usually do not deserve the amount of prison time that comes with various charges. However, in situations like these, with a dirt-ball that would selfishly and recklessly hurt an innocent baby, I fear that the penalty will not be great enough. This woman should be locked up and the key thrown away. What is going to stop her from hurting another innocent child? At the very least her driving privileges should be revoked for the remainder of her pitiful life. - John H. Bryan, West Virginia criminal defense attorney.

From today’s Charleston Daily Mail:

Jurors find Michael Merrifield guilty

by Cheryl Caswell
Daily Mail staff

WINFIELD - After little more than one day of deliberations, a jury has found Michael Merrifield guilty of the murder of 2-year-old Logan Goodall.

They also found Merrifield, 32, guilty of causing the death of a child as a parent or guardian and guilty of sexual abuse by a parent or guardian. They found him not guilty of first-degree sexual assault.

Jurors did not recommend mercy, so the first-degree murder charge carries a life sentence.

Watch video of the verdict being read here
An attorney for Michael Merrifield had told jurors during his closing argument that other people should have been suspects in the 2005 death of the Putnam County toddler.

Ed Rebrook, who along with Mike Clifford has represented Merrifield in his first-degree murder trial, implored jurors to remember there was no direct evidence to link Merrifield with the child’s injuries or death.

And Rebrook again raised the question he has brought up several times during the trial - that Michael’s brother was suspect.

“Where was Patrick Merrifield?” Rebrook asked. “We know he had access to the child. He refused to testify. You have (Logan’s mother) Pepper Eren, you have Michael Merrifield and you have Patrick Merrifield.

“All three suspects were in the house in the time range the physicians have given us for when death occurred.”

Three witnesses, including another medical examiner called in by the state Wednesday, said Logan bled to death from a liver laceration and it could have taken several hours.

“The state wants you through a process of elimination to see that Michael Merrifield did it,” Rebrook said. “That is not what you agreed to do when you agreed to serve on this jury.”

The jury began deliberating Wednesday and continued today.

Conspicuously absent from the courtroom Wednesday for closing arguments were the defendant’s parents, Dr. John and Diane Merrifield, who have sat directly behind their son for the entire trial in Putnam Circuit Court.

The Merrifields were believed to be with Patrick, who reportedly had been admitted to Charleston Area Medical Center.

An operator at CAMC said no information could be given out about Patrick Merrifield. His attorney, Jim Cagle, also would not answer questions.

Patrick was subpoenaed by the defense but invoked his Fifth Amendment right not to testify because he didn’t want to incriminate himself.

Frequently during the trial, the defense had pointed out that Logan, while in the care of Michael Merrifield, also spent a lot of time with Patrick.

In his closing statements, Putnam County Prosecutor Mark Sorsaia asked the jury to find Michael guilty and grant him no mercy.

The former boyfriend of Logan’s mother, Michael is accused of sexually assaulting, abusing and killing Logan on Sept. 6, 2005.

“Do not recommend mercy,” Sorsaia said. “There is none. Don’t give it to him. This is the man who abused this child, causing his death.”

Sorsaia displayed photographs of the dead child while he spoke to jurors. Melissa Eren, the boy’s grandmother, openly wept, and many others in the courtroom cried and dabbed their eyes.

The prosecutor reiterated to the jury the many injuries the boy sustained, including multiple bruises and cuts, and told them no one else could have inflicted them. He said Michael had abused and tortured the boy for months.

“On the 6th of September his body gave up and sought refuge in death. He did not have the benefit of a loving mother or father with him, or a compassionate caregiver to help him.

“He died alone, in the presence of the man over there, who is responsible for killing him,” Sorsaia told them.

But Rebrook told jurors they couldn’t fairly jump to the conclusion that Michael abused or killed the boy. Instead, he reminded them of testimony from witnesses who said Michael loved Logan and provided care for him that his mother did not.

Sorsaia said the toddler wanted nothing but love but got only pain and hurt in his life.

“No matter how hard that little boy worked at being good, he got hurt,” he said. “Children have nothing but love to give, even when someone hurts them.”

Sorsaia reminded the jury of all the stories Michael told of how the child was injured.

“He told everyone at the hospital he loved the child, but the nurses were too smart,” Sorsaia told them. “They noticed he did not have any tears.

“All three paramedics were suspicious. The nurses were suspicious,” he said.

But Rebrook told the jury that medical professionals can jump to the wrong conclusion. He told them his wife once fell down the steps in their home and cut her head. He said he took her to the hospital and was surprised when health care professionals suspected abuse.

“They said to her, ‘He did this to you, didn’t he?’ ” Rebrook recounted.

“I tell you that to tell you in this world there is injustice,” Rebrook said.

Rebrook said that if the child was being hurt and abused, family members would have known it.

“If you hurt a child, they are going to tell someone,” he said. “If Michael Merrifield had burned that child, don’t you think the child would have told his grandparents? Don’t you think he would have said, ‘Michael did this to me?’ “

Rebrook said he thought Michael might have caused the boy’s death in his desperate attempts to revive him the day he died.

According to court records and witness statements, Michael repeatedly told police Logan had started having a seizure and he squeezed and hit him on the back to revive him.

“But I don’t think he murdered him,” Rebrook said.

“My client has been in jail for more than two years,” he said. “I ask you to set him free.”

Note: Examine the last three sentences of the article. The defense attorney posits the theory that his client may have accidentally killed the child in his attempts to resuscitate. I have heard this used before in infant abuse murder cases. This is a classic decision for a jury: is the medical evidence and other evidence in the case consistent with this theory? Evidently the jury found that it was not. The defense attorney also states after positing the theory, “But I don’t think he murdered him.” This is unique. Usually it is not appropriate for the defense attorney to give an opinion as to personal belief to the jury, only to argue on behalf of the client. But, who is going to complain? Certainly not the prosecutor, because the guy was convicted. - John H. Bryan, West Virginia criminal defense attorney.

From the Charleston Gazette yesterday:

Ex-bond lawyer gets 33 months
Coleman guilty of embezzling from employer

By Andrew Clevenger
Staff writer

A former bond lawyer will spend almost three years in prison for embezzling hundreds of thousands of dollars from his former firm.

U.S. District Judge John T. Copenhaver Jr. sentenced Leonard S. Coleman to 33 months in prison in federal court on Wednesday for diverting almost $200,000 of bond fees due to his firm into his own bank account.

Coleman pleaded guilty to one count of mail fraud in August. After the embezzlement was discovered, Goodwin & Goodwin managing partner Tom Goodwin fired Coleman in May 2005.

The following year, the State Bar stripped Coleman of his law license.

“Yours has been a tragic fall from grace and good fortune,” Copenhaver said Wednesday.

Coleman, who earned $240,000 a year as partner at Goodwin & Goodwin, now works at Kmart stocking shelves at night, defense attorney Troy Giatras said. Coleman took the bus to Charleston for his sentencing from his home in Elkview, Giatras said.

“It’s a financial disaster that he has created for himself, and he knows that,” Giatras said, likening his client’s situation to a Greek tragedy.

When Copenhaver asked Giatras how his client can ever make full restitution of $192,740, Giatras said Coleman hopes to relocate to a bigger metropolitan area and put his financial and legal expertise to work in some capacity.

The bond community is close-knit in West Virginia, and Coleman has no chance of ever working within it again, Giatras said.

“Within that fraternity, he [is] no longer welcome,” he said.

Assistant U.S. Attorney John Webb noted that Coleman also had diverted the firm’s funds in the 1990s, and was given a second chance.

“He was given a very great opportunity to rehabilitate himself and continue with that firm,” Webb said.

Coleman apologized to his former partners and colleagues at Goodwin & Goodwin, and to the state’s legal community.

“There’s nobody to blame here but myself,” he said. “I’ve made a tragic series of errors. It’s been devastating.”

Coleman said he hopes to someday get his law license reinstated. Coleman noted Judge Copenhaver swore him in as a member of the State Bar in 1981.

According to the November 2006 state Supreme Court opinion disbarring Coleman, the diverted fees were generated from the firm’s bond work on deals that included the Stonewall Jackson Lake State Park project, the state Water Development Authority project and various county housing projects.

In March 2006, Coleman and Goodwin testified before a subcommittee of the Lawyer Disciplinary Board that Coleman previously had stolen between $30,000 and $70,000 of the firm’s money in 1993 and 1994. Goodwin said he did not report Coleman to any authorities or to the State Bar at that time.

Coleman told the subcommittee that he began diverting the firm’s funds again in September 2004 in part to support his “high-maintenance girlfriend.”

“The woman with whom I reside, this has been devastating to her,” Coleman said Wednesday. He told the judge that he was worried about how she will support herself while he is in prison.

“I’ve lost every friend I’ve had over this,” Coleman said. “I don’t even enjoy coming downtown for fear of running into someone I know.”

Copenhaver gave Coleman the maximum sentence within the range recommended by federal sentencing guidelines.

“If anything, [the guidelines] may be a little low in your case,” Copenhaver said.

“You were given a remarkable reprieve by Tom Goodwin and Goodwin & Goodwin,” the judge said. “It’s simply remarkable that they turned the other cheek.”

Copenhaver added that he was concerned over a memo from the adult probation department that reported Coleman had written two worthless checks since his termination from his former firm.

Coleman filed for bankruptcy in September 2007, listing assets of $234,725 and liabilities of $1,226,321.

Note: I wonder if the victims of Mr. Coleman will turn to his former law firm for restitution since they knew about his tendency to steal client and firm money? They should have turned him in the first time. However, it seems the judge praised them for being so generous to him. Maybe a civil jury would see things differently. - John H. Bryan, West Virginia criminal defense attorney.

From the Register-Herald today:

Plea rejected for woman accused of robbery

Michelle James
Register-Herald Reporter
A plea hearing went awry Wednesday when the defendant admitted to Raleigh County Circuit Judge H.L. Kirkpatrick she was only taking the plea because she wanted to go home, not because she thought she had done anything wrong.

Bridget Rene Sizemore, 33, of Beckley, was expected to plead guilty to first-degree robbery in connection with a March 31, 2006, incident during which she allegedly broke into a Bolt residence and attempted to steal a woman’s purse at knifepoint.

At the time of the alleged crime, Sizemore was on probation for a forgery conviction. By entering a guilty plea Tuesday, Sizemore would have been sentenced to probation for the robbery and her probation for forgery would have been revoked with the underlying sentence of one to 10 years reinstated.

Sizemore, who said she was under the influence of drugs at the time of the incident, did admit to grabbing the victim’s purse but said she was not trying to rob her.

Kirkpatrick told Sizemore he could not accept the plea and told her he believed “it would be best to just set the matter for trial.”

Sizemore was returned to jail and a trial date will be set.

Note: Defendants are forced to take plea agreements all the time despite their claim of innocence. The issue isn’t always is the person “guilty” or “innocent.” There are books and books full of technical crimes. A person could be charged with two or three different crimes for doing the same thing, just depending on what kind of mood the prosecutor was in. One crime could bring a sentence of up to one year in jail… the other crime could carry ten to twenty years in prison - mandatory. Thus, in this woman’s situation, she may not have actually “robbed” the lady, but the State may have a statement from her whereby the police officers carefully got her to unknowingly admit to each and every element of robbery, thus ensuring her conviction of “robbery” rather than simple larceny, which would be a misdemeanor. The point is, that nobody cares about her motives for pleading to a lesser unless the defendant states something in open court that could bring problems if the case ever crossed the bench of an appellate court. - John H. Bryan, West Virginia criminal defense attorney.

From today’s Register-Herald:

Senator is seeking judgeship in Greenbrier County

Mannix Porterfield - Register-Herald Reporter

CHARLESTON — Midway into his second Senate term, Jesse Guills decided Tuesday to gun for higher office, that of circuit judge in the 11th Circuit of Greenbrier and Pocahontas counties.

Elected initially in 2002 in the 10th District, the Republican senator won re-election two years ago and has two years remaining in this term.

“If I’m fortunate enough to win, I will have to give it up,” he reflected after the floor session.

“But they have been six good years. I think we’ve done a lot, certainly in the six years I have been here. I would regret that (leaving) to one degree, but on the other hand, my profession is practicing law. And it’s the ultimate goal of most practitioners of law to be able to serve on the bench.”

Guills filed for the Division I judgeship now held by Judge Joseph Pomponio, named last year to succeed Judge Frank Jolliffe, who retired.

The Division II position is held by Judge James Rowe.

“I believe my experience in practicing law and really the experience I’ve gained through the legislative process have enabled me to be a quality candidate for that position,” Guills said.

Pomponio is seeking a full term in the post, and a third candidate in the race is Steve Hunter, a practicing attorney in Lewisburg. Guills is the lone Republican candidate at this stage.

Guills has been an attorney since 1971, handling civil and criminal cases. He is a charter member of the West Virginia Chapter of the American Board of Trial Advocates.

“I’ve done pretty much all areas of law, including juveniles,” he said.

In the Senate, he has served on the finance, education and health and human resources committees.

Outside the Legislature, he also has seen public duty by serving on the Greenbrier County Airport Authority, where he was chairman in 1998.

Guills earned a B.S. degree in business administration and his law degree at West Virginia University and is the father of two children, Amy and Patrick.

“I will miss the friendship and people that I’ve met down here,” he said of his Senate tenure, if he succeeds in winning the judgeship.

“I will miss voting and continuing to be involved in the politics of this state.”

Note: I still to this day can’t understand why we would want a judge to campaign for office as a partisan politician. Should there be a difference between a Republican and Democrat judge? I would hope not. But, people need to keep in mind that this is probably one of the most important races they will vote on. In West Virginia, we unfortunately have no intermediate appellate court. Thus, it is very, very, very important to get good decisions at the trial level. Furthermore, we need commitments from these candidates that they will uphold the constitutional rights of the people and that they will not be an appendage of the office of the Prosecuting Attorney. - John H. Bryan, West Virginia criminal defense attorney.

From today’s Charleston Gazette:

State Police trying yearly behavioral health screenings

By The Associated Press

State Police are working to implement yearly behavioral health screenings for troopers, based on recommendations from a panel studying suicides among law enforcement.

Joe Thornton, deputy secretary of the state Department of Military Affairs and Public Safety, said the goal is to implement all of the committee’s recommendations, though time and resources may cause some delays in putting them into practice.

While the existing system, including confidential counseling services, is adequate, the panel says in its Jan. 2 report to Gov. Joe Manchin that more could be done, including erasing the stigma often associated with seeking help for emotional issues.

It suggested the agency try mandatory screenings for five years.

The agency also should do more to advertise the available mental health services and to help troopers feel more comfortable about seeking treatment.

The panel also recommended making psychological health and stability an integral part of performance ratings and reinforcing the occupational hazards of the job during recruit training.

It also suggests training supervisors identify people who may need help and reviewing how prescribed medicines may affect troopers’ work.

Besides Thornton, the committee included John Linton, vice chairman of the Department of Behavioral Medicine at West Virginia University; John Bianoni, commissioner of the West Virginia Bureau for Behavioral Health; and Carl Berlin, a retired State Police lieutenant.

Manchin sought the review after Cpl. Marlo Gonzales, 39, a 13-year veteran of the force, was found dead last fall in his cruiser from a bullet fired from his service weapon.

His death was the second suicide by a West Virginia state trooper since 1999.

Note: as a West Virginia criminal defense attorney, my immediate thought upon reading this article was, if mental health screenings are mandatory for WV State Police Troopers, then mental health records will definitely exist for all Troopers. In many instances, mental health records are admissible in court as to the credibility of a witness. I can think of no other witness who’s credibility is more important than that of our law enforcement officers. It would be interesting to see what would happen to the flood of motions that would surely be forthcoming if these screenings become mandatory. - John H. Bryan, West Virginia criminal defense attorney.

From the Charleston Gazette today:

Police: Clerk cut gas price for family

By Davin White
Staff writer
South Charleston police say gas prices dropped to .001 dollars a gallon for one clerk’s friends and family.

On Sunday morning, South Charleston Police arrested clerk Madeline Jordan, 25, of Nitro and five of her family members and friends after she allegedly sold them gas at a rate of 10 gallons per penny.

The owner of the Spring Hill BP alerted police Thursday that he was losing money at an alarming rate and feared he would have to file for bankruptcy protection, according to South Charleston Patrolman C.A. Crowder.

Police did not wish to release the owner’s name.

The store is on U.S. 60 at the west end of town near Jefferson, Crowder said.

The owner estimated that he’s lost more than $40,000 in about six months, Crowder said. Receipts led investigators to monitor Jordan’s Sunday work shift. She starts at 7 a.m. and could change the rate customers were charged for gas, Crowder said.

Crowder said they found five vehicles Sunday morning hauling between four and seven gasoline containers each, with about 25 in all. Each of the gas containers could hold three or more gallons of gas, he said. Some of the drivers arrived by 6:45 a.m. and started pumping gas before the store even opened at 7 a.m., Crowder said.

Police charged Jordan, Mary Catherine Jordan, 58; Clifford Parker, 47; Vonnie Oldham, 38; Glennis Fields, 39; and John Jordan III, 27, each with fraudulent schemes, a felony.

Crowder said Madeline Jordan is not related to Fields. She may be related to Parker, he said.

The six suspects are from the Nitro, Dunbar and Leon areas.

Madeline Jordan may also face additional charges, Crowder said.

All six were sent to the South Central Regional Jail on Sunday, Crowder said.

Note: all involved here are probably judgment-proof civilly. However, as far as restitution out of a criminal case, the more the merrier. In West Virginia, the monetary threshold between misdemeanors and felonies is $1,000.00. Certainly the clerk is above that threshold. But, it would be difficult to figure out who bought what gas as far as the records are concerned. That being said, it would be difficult to pin the felony against any of the individuals absent some sort of conspiracy-type charge. But then again, they could confess to stealing more than $1,000.00 worth of gas and they wouldn’t have to worry about the records. - John H. Bryan, Attorney at Law.

From today’s Register-Herald:

Jury selected for accused cop killer

By Matthew Hill
Register-Herald Reporter
A jury of seven women and five men, along with two male alternates, was impaneled Thursday for the March 10 trial of a Beckley man charged with fatally gunning down a city undercover police officer in August 2006.

The panel was seated Thursday after Raleigh County Circuit Judge H.L. Kirkpatrick started Wednesday morning with a pool of 47 potential jurors for the trial of Thomas Leftwich, 25. Leftwich is charged with one count each of first-degree murder, conspiracy and use of a firearm in connection with the Aug. 29, 2006, shooting death of Beckley Police Detective Cpl. Chuck Smith.

Kirkpatrick thanked the jurors for “going above and beyond the call of duty” in braving Thursday’s inclement weather to appear in his courtroom. He cautioned the jurors to refrain from reading, viewing or listening to media coverage of the case. Kirkpatrick added they would be individually questioned March 10 as to any media coverage to which they may have been exposed.

A motions hearing in the case is scheduled for Feb. 21. Chief deputy prosecutor Kristen Keller is heading up the prosecution, while Leftwich is represented by Logan County attorney Mark Hobbs.

Leftwich’s co-defendant, Michael E. Martin, 42, of Beckley, was convicted last month of first-degree murder and conspiracy in connection with Smith’s death in an alleged undercover drug buy that went sour.

In that case, as in Leftwich’s, a jury was selected several weeks ahead of the trial due to heavy publicity surrounding the case. Attorneys have worried that intense media coverage could make jury selection problematic.

Martin faces life in prison with no chance of parole when he is sentenced today by Kirkpatrick.

Note: This reporter is one of the same reporters that covered the Patricia Brown murder trial that I was involved in. It is always frustrating to read the newspaper every morning during a highly-publicized murder trial in that it is almost always heavily biased against your client. The sad thing is that you know jurors are probably reading the paper every morning too. Even worse than the paper is watching the evening news on TV - they are horribly, horribly biased and inaccurate. However, this particular reporter, Matthew Hill, began his stories about the Patricia Brown trial in a very biased way - see for example this article, titled “Victim named killer as she bled to death, witness says.” It makes you cringe to picture jurors waking up in the morning and taking a glance at the front page of the paper, whether they actually read the article or not. However, I think that after sitting through every witness in the trial, he began to publish articles that were more fair and balanced, see for example this article titled “Defense hints at theory in murder trial,” or this article titled “Experts testify in Brown murder trial.”

Anyways, in the above case, using the label “cop-killer” definitely is not going to help the defense if potential jurors hear that word. In their mind, they are not going to want to even consider the possibility of finding someone not guilty who has been touted in the community as being a “cop killer.” Whether he is or not is irrelevant. The point is that even defendants charged with killing cops are entitled to a fair and impartial jury. This is probably something that you will see at the trial itself. Trial lawyers like to use labels in front of juries. I’m sure the prosecution will repeatedly refer to the defendant as a “cop killer,” probably over the objection of the defense. - John H. Bryan, Attorney at Law.

From today’s Beckley Register-Herald:

A Fayette County burglary suspect was shot by a homeowner who police said was burglarized by the same suspect at least one other time.

Nighttime burglary charges are pending against Tracey Ann McQueen, 25, of Kaymoor Road, Fayetteville, Sheriff Bill Laird said. McQueen was taken to Charleston Area Medical Center Wednesday morning for treatment of a single gunshot wound to her left hand. She was under evaluation at the hospital as of Wednesday afternoon.

At 4:45 a.m. Wednesday, the Fayette County 911 Center was notified of a burglary in progress at a Pleasant View Road residence, near Fayetteville, Laird said. Later, the alleged burglar was reported to have been shot in the hand by the homeowner. When deputies arrived at the scene, the homeowner said the female suspect fled.

A short time later, deputies identified the suspect as McQueen, Laird said. McQueen was located at a Kaymoor Road residence and taken to Plateau Medical Center. She was later transferred to CAMC.

The preliminary investigation indicates the female victim was awakened to find McQueen inside the residence, Laird said. The victim confronted McQueen, attempting to hold her at gunpoint while awaiting deputies’ arrival. A struggle ensued, during which McQueen was apparently shot by the victim’s .22 caliber revolver.

Laird said McQueen had been charged with burglarizing the same residence Nov. 4, and she was free on bond when the latest incident occurred. McQueen was also considered a primary suspect in at least one other previous incident at the same residence. Reports indicate the victim’s house had been burglarized on several other occasions during the past few months.

McQueen is believed to have, in the past, lived near the victim’s residence, Laird said. Laird was unsure if McQueen and the victim actually knew each other.

No charges have been filed against the homeowner, Laird said.

Investigations into this incident and all other previous crimes at the residence are ongoing, Laird said. Deputies T.N. Mooney and W.K. Willis and sheriff’s detective bureau are investigating.

Note: The headline used by the Register-Herald was “Sheriff: Burglary suspect shot by homeowner.” I believed this to be a little ridiculous, so I changed it to “Burglar Shot by Homeowner in Beckley.” Sometimes the press can get a little carried away with the words “alleged” and “suspect.” Even a criminal defense attorney can say here with absolute certainty that this person was a “burglar,” not a “suspect.” Also, why is it necessary to indicate in the headline that it came from the Sheriff? The point is, that the media sees the real criminal as any homeowner with the audacity to protect themselves with guns - as we have a right to do in this country (well, in West Virginia anyways; according to Mayor Bloomberg and other fanatical big-city mayors, you lose that right when you cross rust-belt city limits) This point of view is apparent towards the end of the article, where the author, as if she was surprised, notes that “No charges have been filed against the homeowner….” Let’s hope the author of this article never runs for prosecuting attorney. - John H. Bryan, Attorney at Law.

As detailed in the Charleston Gazette today, former WV State Senator Lisa Smith was sentenced to 2 years in federal prison in Alderson, and must pay the IRS 1.3 million dollars. As has been previously covered in the West Virginia Political Sweatbox Blog, this is a shining example of how politicians - especially in West Virginia - believe that they are above the law.

West Virginia legislators are like Robin Hood’s Sheriff of Nottingham. They are siphoning off every dime earned by our hard-working citizens (and then giving every dime to our non-working citizens), all-the-while lining their own pockets with silver and gold.

As an interesting side-note, at the sentencing Lisa Smith’s attorney, Tom Smith, argued that she should be given a lesser sentence because she is supposedly bipolar. He stated that “the spending, the irrational thought — that is the behavior that brings us here. Everything she did is consistent with bipolar disorder. You’re behind on your taxes so you start gift shopping? That’s not rational behavior.” Federal District Court Judge Robert C. Chambers rightly responded that her circumstances were more the result of “her greed and her arrogant pursuit of public office.” - John H. Bryan, Attorney at Law

As detailed in the Smoking Gun, this morning, disbarred former Durham County, North Carolina prosecutor, Mike Nifong has filed for bankruptcy, listing over 180 million dollars worth of liabilities due to pending lawsuits by the Duke lacrosse players.I practiced juvenile criminal defense in Durham County, North Carolina for one year. In fact, I was there when the lacrosse investigation began. I remember thinking that it was disgusting that Nifong appeared on television and called the “suspects” hooligans and otherwise prejudiced them in the court of public opinion - and this was extremely early into the investigation. I remember saying to somebody that the public should have some type of protection against rogue prosecutors such as Nifong. I never would have believed that he would end up getting disbarred. We should all applaud the great State of North Carolina for sticking it to him and making a great example out of him.But, the fact is, that this happens all the time. Sadly, when it happens to poor people, who cannot spend millions of dollars on expensive and exclusive criminal defense attorneys, it goes completely unnoticed.Don’t get me wrong, I hate Duke as much as any other UNC Chapel Hill alumnus, but no one deserves to be used as pawns in a DA’s race-baiting reelection campaign. - John H. Bryan, Attorney at Law

Perhaps the most difficult situation to be faced with as a criminal defense attorney in West Virginia, or in any other rural state, is going to trial with a defendant who is charged with such an appalling crime that it is practically impossible to get a fair and impartial jury. This task is made much more difficult in your average small West Virginia county, where any crime of great magnitude is going to be repeatedly covered in the local media. Nevertheless, without a fair and impartial jury, justice cannot be served, one way or the other. In my opinion, cases like this should be moved far, far away from the local county in which the crime is alleged to have taken place. In the below case, today marks the third day of jury selection. Obviously the defense attorneys made a previous motion for change of venue, which was denied or “taken under consideration” by the Judge until either a jury is seated, or enough potential jurors are dismissed for cause that a jury cannot be seated. Either way, if it has already taken three days to seat the jury, obviously most of the potential jurors have prior knowledge of the case from media accounts or other local conversation or gossip. This creates a tough row to hoe for the defense if a jury is seated - since all it takes for a juror to be deemed “fair and impartial” by the Court is for them to say, “yeah, I think he’s guilty, but I probably can be fair and impartial….”

From an article in the Charleston Daily Mail:

Opening statements are likely to begin Monday in the trial the man accused of sexually assaulting and killing Putnam County toddler Logan Shane Goodall.

After three days of questioning potential jurors, defense lawyers and prosecutors on Thursday had not yet chosen the 12 people who will decide the fate of Michael Kent Merrifield.

“We’re slowly but surely trucking along,” defense lawyer Mike Clifford said Thursday morning.

The 2-year-old boy died in September 2005. An autopsy found that he had been severely beaten and sexually assaulted before his death.

Merrifield, 32, once dated the boy’s mother, Pepper Dawn Eren. He is charged with first-degree murder, first-degree sexual assault, sexual abuse by a parent or guardian and child neglect by a guardian or parent resulting in death. In August 2006, Merrifield pleaded not guilty to the charges.

His lawyers have long maintained that they wouldn’t be able to find an objective jury in Putnam County because of media attention to Merrifield’s case. In September, Putnam Circuit Judge Ed Eagloski denied their written motion to change venue because of publicity.

“Obviously [publicity] is the problem, and it is taking a long time,” Clifford said. “I’ve been involved in criminal trials where the selection of the jury didn’t take an hour.”

Prosecuting Attorney Mark Sorsaia said he has a policy not to publicly comment on a trial until it is over. He would only say he expects opening statements to begin Monday.

Defense lawyers and prosecutors started individually questioning potential jurors Tuesday at the Putnam courthouse in Winfield, Clifford said.

“I think we’ve questioned probably close to 40 at this point,” he said Thursday morning.

Dozens of potential jurors were eliminated even before questioning began due to their answers to a jury questionnaire, he said.

Eren originally also faced first-degree murder charges, but pleaded guilty last year to child neglect causing injury. In September, she was sentenced to one to 10 years in prison.

As detailed at the CrimProf Blog, evidence has been discovered of a prosecutor wanting to downplay evidence in an innocent man’s trial.

From jacksonville.com: Only weeks before Chad Heins’ murder trial in 1996, a Jacksonville prosecutor sent a memo asking a state crime lab supervisor to downplay findings that stray hairs found on the victim’s body came from an unknown person.

“I need to structure your testimony carefully so as to convince the jury that the unknown hairs are insignificant,” Assistant State Attorney Stephen Bledsoe wrote in a letter recently obtained by the Times-Union.
In December 1996, a jury convicted Heins of the first-degree murder of his sister-in-law in her Mayport apartment. He was sentenced to life in prison until new DNA tests led to his release last month.
Bledsoe’s letter was among thousands of pages of documents examined by Heins’ lawyers after a judge allowed re-testing of DNA in the case. Although the attorneys don’t believe it affected the outcome of the case, the letter shows a “cavalier disregard for the actual evidence,” said Jennifer Greenberg, policy director of the Innocence Project of Florida, which worked for Heins’ release.
“It actually made my stomach turn,” Greenberg said Tuesday. “This is not a game. This is justice. These are people’s lives and they matter and the truth matters.” Rest of Article. . . [Mark Godsey]

On December 6, 2006, a stabbing death took place at 417 Temple Street in Hinton, West Virginia. Three people were involved in an altercation in a home, one of them was stabbed. The two survivors both blamed each other. This set the foundation for a trial that would last nearly two weeks in December 2007.

Lewisburg attorney Tom White, as well as myself, were appointed by the court to represent Mrs. Brown. For over a year, we prepared the case for trial. We knew that it would be difficult for her to get a fair trial in Summers County, West Virginia, so we filed a motion for change of venue. The motion consisted of twenty-six pages of negative and biased media accounts that had already been injected into the minds of potential Summers County jurors. However, the motion was denied and we went to trial on December 11, 2007.

The end result was that Patricia Brown was acquitted of first degree murder, but was found guilty of second degree murder. Of interest to this blog however, is the conduct of the West Virginia State Police Forensics Lab during the investigation of Mrs. Brown and during the trial itself. What most West Virginians do not know is that the State of West Virginia does not have a separate and independent forensics lab to perform the DNA and other testing in criminal cases, as does almost all other states. This has presented serious problems in the past, and it continues to pose a problem. I will detail some of these problems in my next post.

 Welcome to the WVCriminalDefenseAttorney.Com blog. I was inspired to start this blog after diving into the murky depths of the West Virginia criminal justice system in a recent murder trial that I was involved in - which will be detailed in my next post. Most of us never encounter this dark world, except through the occasional speeding ticket. Citizens are rather adamant about opening up and “shining light” on our political process through enacting various “sunshine laws.” However, the same cannot be said for the criminal justice system, which is run by a mixture of politicians, lawyers and law enforcement officers. This assortment of characters wield extreme power, sometimes recklessly, and almost always with no accountability to the people.This is especially true in West Virginia, where we are lacking important safeguards that exist in other states. For example, we have no intermediate court of appeals. This means that our West Virginia Supreme Court of Appeals is overloaded with cases and cannot guarantee appeals to all people convicted of crimes. Most West Virginians are unaware of this scary fact: if you are convicted of a crime in West Virginia, you have no right to an appeal. In fact, your first appeal as of right may be to the United States Supreme Court, where the chances of your case being considered are literally zero. And as I plan on detailing in future posts, it actually doesn’t take that much to get a jury to convict an innocent person.Lastly, the goal of this blog is not to drum up business for my criminal defense practice, but rather to inform the people of West Virginia of the “going-ons” of the West Virginia criminal justice system, and to attempt to disinfect some of the dark spots and problem areas of the system by using good old fashioned sunshine. My goal is to encourage reforms in our state to help safeguard innocent citizens from wrongful convictions.