Coincidence in the morning paper…

This morning I took a look at the Register-Herald newspaper because I knew there would be an article about a lawsuit that I filed recently.  It was published, and can be found here.  But I was also surprised to see an article about my youngest brother, Beau, in the same section.  This is the same brother that got one of my other brothers –  Trey (who’s artwork you should take a look at here) – past the secret service and in to meet Bill Clinton a few months ago.

 - John H. Bryan, West Virginia Attorney.

Jury Trial Ongoing

I am still in the middle of my Greenbrier County civil jury trial, so my time continues to be limited. Closing arguments are slated for friday morning, and then the jury will get the case. For that reason, I can’t comment on it other than to say it is unbelievable how much jury trials take out of you. When I played football, I pushed my body to the limits physically. Then, after the game, and the next day, I was tired and worn out. For some reason, I feel the same way after a full-day of trial. The mental concentration, stress and passion that I put into it leaves me drained afterwards, as if I had been doing some strenuous physical activity all-day. For this reason, a week-long murder trial is like a triathlon, and part of your strategy has to be dealing with your physical body and your mind: drinking enough water, getting enough sleep, and preparing yourself mentally each day.

– John H. Bryan, West Virginia Attorney.

Simple Justice on law school

Scott Greenfield at Simple Justice hit the nail on the head with his post regarding the important, and unimportant, aspects of a legal education. Most law schools do an amazingly poor job at preparing students for the actual practice of law, which much of the time includes dealing with abuse incoming from every direction. Scott stated that:

A well-conceived law school education serves one purpose only: to prepare you to confront the abuse of being a lawyer and prevail. How to prevail comes later. You’re not ready for that now. For now, you need to learn how to toughen up and take abuse without crying and whining. How to keep a smile on your face and deflect the humiliation that is designed to make even the most macho man shrivel. If your lawprof doesn’t abuse you, she hasn’t done her job. If your lawprof doesn’t toughen you up, then you’ve gained nothing.

Up to this point in your educational career, the system has been designed to make you feel good about yourself and build your self-esteem. If this isn’t changed, it will destroy you as a lawyer. There is nothing about the legal system that will make you feel good about yourself. It will challenge your dignity and humanity at every turn. Your mommy is wrong when she tells you to just go up to the judge after court and tell him that he wasn’t very nice to you and you don’t appreciate it. This is not a successful strategy.

How true that is. Perhaps the hardest thing to learn as a trial lawyer is to confront the realization that at least half of everyone you encounter in your profession are going to dislike, or even hate, you. It requires putting up with every kind of abuse and stress that has ever existed, while at the same time either deflecting it, or absorbing it in a way that motivates you rather than slows you down or stresses you out. Because in the real world of knitty-gritty trial practice, prevailing is the only thing that matters. Second place only counts in horseshoes and hand-grenades.

– John H. Bryan, West Virginia Attorney

Civil Jury Trial in Greenbrier County

Unfortunately, I will not be able to post much for a little while because I have a civil jury trial in Greenbrier County rapidly approaching. As with any jury trial, it takes an overwhelming amount of preparation to even get there, much less to win. So if you don’t hear from me for a while, it’s definitely not because I’m out partying.

– John H. Bryan, West Virginia Attorney.

“Testilying” an everyday occurrence

Mark Bennett posted a few days ago about the “everyday incident” of cops committing perjury – or as they call it, “testilying.” He stated that:

Not all cops who lie are willing to perjure themselves. Many times cops on the witness stand tell different stories (the truth) than what they had put in their offense reports (lies). Unfortunately, though, most cases never make it to trial (often the lies are too small to be relied upon to affect the outcome), so prosecutors — despite having seen this happen more than I have — rely on offense reports as the literal truth in deciding how to resolve cases. (The lesson to defense lawyers is, of course, not to make that mistake, to listen to your client, and to remember that good things happen when you try cases. Nobody ever got acquitted by pleading guilty.)

I can’t tell you how many times I have cross-examined a cop in a suppression hearing or preliminary hearing, where something completely different comes out of his mouth than what he wrote in his police report. I think that what obviously happens is that the cops do whatever they want initially. They pull the person over on a “hunch,” or search the person or their premises illegally, without regards to mere rules or laws, then they put in their “report” a little white lie – that they received a tip from an undercover informant, or that the person drove erratically, or that the person consented to being searched. This, in their mind, validates the search, stop, or seizure if they found anything incriminating. Then, several months later, they get called to the witness stand, and they fail to review the report, but their memory is not totally in sync with their report.

Cops don’t fear prosecution for perjury because there is almost a 0% chance they will be prosecuted. The cops – or judges for that matter – could care less. The only, only, only situation in which there could be criminal liability imposed on a cop for perjury is if they are caught on tape or under oath, and if it is blatantly intentional. Only if the situation is such that a prosecutor of judge would fear for his or her own job if they fail to act. Otherwise, they will always be given the benefit of the doubt, if not just a shrug of the shoulders.

As a defense attorney, you know they are lying, but there is not much you can do about it other than to contest it and to create a record for your trial or your appeal. As Mark Bennett, said, “nobody ever got acquitted by pleading guilty.”

– John H. Bryan, West Virginia Attorney.

Insurer (AIG) Denies Life Insurance Claim for WV Iraq Vet

There was a story in the Charleston Gazette today about an insurance company, AIG, who denied the life insurance claim of an Iraq vet’s family, and in return the family sued. If you didn’t already know that insurance companies are the dregs of corporate society, well now you know. This poor family has lost two sons, both of whom served in Iraq. Life insurance is supposed to be automatic. The vet took out the policy himself, naming his parents as beneficiaries so that they wouldn’t be burdened with expenses like when their other son was killed in Iraq. This hero paid over 14 months worth of premiums, and his claim was denied because they didn’t know about a car accident that happened when he was 16 years old.

“[AIG] said that had they known that Andrew White had a car accident when he was 16 years old, they never would have written the policy to begin with,” said Charleston attorney Jack Tinney, who represents the White family. “That’s ludicrous.

“They have gone back and searched for any reason whatsoever to deny the claim, rather than look for a valid reason,” Tinney said.

Amen – and good luck to this family. I hope they stick it to AIG and make them eat their greedy decision to deny this poor family what they are rightfully owed. There has been a lot of talk about the terrible “business climate” in West Virginia. Most times, this is what “business climate” is. Insurance companies lobbying for a better “climate” in which to plunder the hard-earned savings of West Virginians. How easy do we want to make it for insurance companies to rip off our citizens? Do we really want to make it difficult for folks such as this family to seek civil justice?

– John H. Bryan, West Virginia Attorney.

Cop “Overdoses” on Marijuana Brownies

Thanks to Bobby Frederick to finding this video and story, which I had not seen before, about a Michigan police officer who took some pot he confiscated, and baked brownies and ate them with his wife. Then they called 911 to report an overdose, despite the fact that it is impossible to overdose on marijuana.

Former “Charleston Football Player” Found Guilty of Child Neglect

As reported in the Charleston Daily Mail today, Rainest Crawford, 24, of Charleston was convicted after a jury trial of child neglect. The facts of these cases are such that they could easily go both ways. Because who would harm an infant unless it were an accident? But as in other cases, an attempted cover-up or lying sometimes secures the conviction. And in this case, he denied knowing what harmed the infant for the first two days after the injury, and then he came clean claiming that it was an accident. If you accidentally injure a baby, you should be able to tell a physician exactly what happened to the child in order to promote the best possible medical care. And if you don’t, then you deserve a felony conviction of child neglect. These circumstances seem to be playing out in the Caylee Anthony case as well.

The article stated the following:

Prosecutors, however, said the 210-pound former University of Charleston football player intentionally harmed the baby. Their primary evidence was that Crawford was the only one in the room with the baby at the time and he told doctors, the mother and police for two days that he didn’t know how she sustained those injuries.

First of all, what difference does it make that the guy used to play football for the University of Charleston? It’s not like he is famous… Should we label all criminal defendants by what sport they used to play? And why mention that he weighs 210 pounds? When you have an adult up against a baby, it doesn’t really matter what your weight is. Furthermore, 210 pounds is not that large. I am at least thirty pounds heavier and I certainly don’t think my weight should be mentioned in an article about me – unless it specifically is written about my amateur sumo-wrestling hobby.

The article quoted Crawford as stating that:

“I’m sorry,” he said. “It all happened so fast. I don’t want to be a bad parent. She was my first child, and I didn’t have any experience or nothing. I’d never been in that situation before.”

People react differently to situations such as this, and it is certainly possible that it was a genuine accident. Knuckle-dragger former football players such as this guy and myself have to be extremely careful when holding an infant. Do the State’s experts really know for a fact that this was caused by “abuse” and not an accident? As with any expert medical testimony, there are two sides to every opinion. Usually defendants such as this do not have access to adequate expert testimony to present the “other side of the story” to the jury.

Regardless, this is very sad. Infants are completely innocent victims. The article didn’t say what permanent injuries were suffered by the child, but even a slight injury to a baby is a tragedy.

You can read the full article here.

– John H. Bryan, West Virginia Attorney.

So far away, yet so similar…

While perusing Fort Worth criminal defense attorney Shawn Matlock’s blog, I came across a post describing the world of Texas’ Magistrate Court, which seems to be strikingly similar to West Virginia’s Magistrate Court. Apparently we are not that unique with respect to the concept of speed-pleading. And I thought that I was the only one who felt uncomfortable in that type of judicial atmosphere…

– John H. Bryan, West Virginia Attorney.

And You Want the Government To Manage Your Healthcare?

Its practically common-knowledge that most government bureaucrats and their red-tape agencies would not be able to hack it in the private market. When profit is no longer an incentive, complacency, arrogance, and ineptitude (i.e., bureaucrats and politicians) move-in. This is an actual letter sent to a man in Pennsylvania, by the Pennsylvania Department of Environmental Quality, as well as his actual response.

SUBJECT: DEQ File No.97-59-0023; T11N; R10W, Sec. 20; Lycoming County

Dear Mr. DeVries:

It has come to the attention of the Department of Environmental Quality that there has been recent unauthorized activity on the above referenced parcel of property. You have been certified as the legal landowner and/or contractor who did the following unauthorized activity:

Construction and maintenance of two wood debris dams across the outlet stream of Spring Pond.

A permit must be issued prior to the start of this type of activity. A review of the Department’s files shows that no permits have been issued. Therefore, the Department has determined that this activity is in violation of Part 301, Inland Lakes and Streams, of the Natural Resource and Environmental Protection Act, Act 451 of the Public Acts of 1994, being sections 324.30101 to 324.30113 of the Pennsylvania Compiled Laws, annotated.

The Department has been informed that one or both of the dams partially failed during a recent rain event, causing debris and flooding at downstream locations. We find that dams of this nature are inherently hazardous and cannot be permitted. The Department therefore orders you to cease and desist all activities at this location, and to restore the stream to a free-flow condition by removing all wood and brush forming the dams from the stream channel. All restoration work shall be completed no later than January 31, 2006.

Please notify this office when the restoration has been completed so that a follow-up site inspection may be scheduled by our staff. Failure to comply with this request or any further unauthorized activity on the site may result in this case being referred for elevated enforcement action..
We anticipate and would appreciate your full cooperation in this matter. Please feel free to contact me at this office if you have any questions.

Sincerely,

David L. Price
District Representative and Water Management Division.

This is his response:

Re: DEQ File No. 97-59-0023; T11N; R10W, Sec. 20; Lycoming County

Dear Mr. Price,

Your certified letter dated 12/17/02 has been handed to me to respond to. I am the legal landowner but not the Contractor at 2088 Dagget Lane , Trout Run, Pennsylvania

A couple of beavers are in the (State unauthorized) process of constructing and maintaining two wood ‘debris’ dams across the outlet stream of my Spring Pond. While I did not pay for, authorize, nor supervise their dam project, I think they would be highly offended that you call their skillful use of natures building materials ‘debris.’

I would like to challenge your department to attempt to emulate their dam project any time and/or any place you choose. I believe I can safely state there is no way you could ever match their dam skills, their dam resourcefulness, their dam ingenuity, their dam persistence, their dam determination and/or their dam work ethic.

These are the beavers/contractors you are seeking. As to your request, I do not think the beavers are aware that they must first fill out a dam permit prior to the start of this type of dam activity.

My first dam question to you is:

(1) Are you trying to discriminate against my Spring Pond Beavers, or

(2) do you require all beavers throughout this State to conform to said dam request?

If you are not discriminating against these particular beavers, through the Freedom of Information Act, I request completed copies of all those other applicable beaver dam permits that have been issued.

(Perhaps we will see if there really is a dam violation of Part 301, Inland Lakes and Streams, of the Natural Resource and Environmental Protection Act, Act 451 of the Public Acts of 1994, being sections 324.30101 to 324.30113 of the Pennsylvania Compiled Laws, annotated.)

I have several concerns. My first concern is, aren’t the beavers entitled to legal representation? The Spring Pond Beavers are financially destitute and are unable to pay for said representation — so the State will have to provide them with a dam lawyer. The Department’s dam concern that either one or both of the dams failed during a recent rain event, causing flooding, is proof that this is a natural occurrence, which the Department is required to protect. In other words, we should leave the Spring Pond Beavers alone rather than harassing them and calling them dam names.

If you want the stream ‘restored’ to a dam free-flow condition please contact the beavers — but if you are going to arrest them, they obviously did not pay any attention to your dam letter, they being unable to read English.

In my humble opinion, the Spring Pond Beavers have a right to build their unauthorized dams as long as the sky is blue, the grass is green and water flows downstream. They have more dam rights than I do to live and enjoy Spring Pond. If the Department of Natural Resources and Environmental Protection lives up to its name, it should protect the natural resources (Beavers) and the environment (Beavers’ Dams).

So, as far as the beavers and I are concerned, this dam case can be referred for more elevated enforcement action right now. Why wait until 1/31/2006? The Spring Pond Beavers may be under the dam ice then and there will be no way for you or your dam staff to contact/harass them.

In conclusion, I would like to bring to your attention to a real environmental quality, health, problem in the area. It is the bears! Bears are actually defecating in our woods. I definitely believe you should be persecuting the defecating bears and leave the beavers alone. If you are going to investigate the beaver dam, watch your step! The bears are not careful where they dump!

Being unable to comply with your dam request, and being unable to contact you on your dam answering machine, I am sending this response to your dam office.

THANK YOU,

RYAN DEVRIES
& THE DAM BEAVERS

Another Starbucks Stickup?

As I detailed in a previous post, Starbucks has the bad luck of getting shaken-down by crooked cops who enjoy the expensive drinks. Unbelievably, it has happened yet again, this time in Chicago. A Chicago police officer has been suspended and ordered into counseling after she was found guilty of demanding free coffee from six different stores on the North Side of Chicago.

Thanks to Scott Greenfield for finding this story.

You can read the full article here.

– John H. Bryan, West Virginia Attorney.

Is it a crime for a child to take a photo of a cop handcuffing her father?

Houston Criminal Defense Lawyer, Mark Bennett, posted yesterday regarding this story from Johnson County Tennessee, where Sheriff’s Deputies have been arresting people and confiscating iphones after pictures are taken of the cops in public.

This reminds me of a West Virginia case I am dealing with right now where a man videotaped the police shooting tear-gas grenades into his home. The police then broke down the door, shot the man with a taser, and attacked the man with their k-9. Then the guy was dragged off and thrown in jail. Guess what the charge was? Murder? Kidnapping? No, he was alleged to have made a harassing phone call. Guess what happened to the video and the video camera? The cops seized it with the consent of the prosecuting attorney – and it has yet to appear or to be provided to the defense. The problem is, that the 911 logs prove that the officers found it, and called the prosecutor requesting permission to seize it. Do you think they could be holding out until after the statute of limitations runs on a civil lawsuit? Or do you think they “misplaced” it somewhere in the evidence room?

So for those of you who think that law enforcement corruption in West Virginia is a conspiracy theory, please see the above paragraph. It exists. If any State or Federal investigators are at all interested in this case, please feel free to contact me and I will provide you with all of the particulars. But I won’t hold my breath with respect to the State, since they would be the ones getting sued. And I suspect the feds are too busy to worry about West Virginia. Like they say, “if you investigate one case, everyone else will want their case investigated as well…,” and that could take a while.

– John H. Bryan, West Virginia Attorney

This Blog Makes Front-Page News…

Note: this post was initially much more extensive.  Pursuant to the advice of my beautiful wife, against whom I have never won an argument (and suspect I never will), and who’s advice has the usual effect of making my hot-heated initial reactions seem childish and ineffective, I have revised this post.

It seems that my humble commentary regarding the Register-Herald op-ed piece detailed in my last post touched quite a few nerves at the Monroe Watchman newspaper. For those of you who may not know, the Monroe Watchman is the main newspaper for Monroe County, West Virginia, and it has been continually published since 1872. It’s a great paper. I read it every week, and I am also a paying advertiser. They are also located right across the street from my office building.

Why should they care about my commentary in this post? Because the Watchman is owned by the family of the former prosecutor who I allegedly criticized, and understandably, they are protective of their family members. And also understandably, the former prosecutor is deeply hurt as a result of the lost election.  And I completely understand the hurt, as I suffered through my father’s election defeat as a college student.  It’s not easy to see negative television commercials about your father running during prime-time every couple of minutes for a month straight.  Your natural reaction is to lash-out at your perceived threat, and I guess that that is what I was doing as well in my initial response in this post.  And so I also understand why the former prosecutor feels the need to protect himself and his family.

This situation is not about me, it’s not about the former prosecutor, nor the current prosecutor, nor the magistrate – nor the Watchman.  This is about Mr. Watson, who made the intentional choice to consume alcohol and drive a dozen children off of a 120 foot cliff in a Monroe County school bus.  This is about Mr. Watson, who tried to save his own skin by lying and claiming that he consumed Nyquil the night before.  This is about Mr. Watson, who misled much of the community into believing that he was innocent, only to let them down with the sad truth – that he had an alcohol problem.  But, he still didn’t want to lose his job, and he didn’t want to lose his retirement.  That was what Mr. Watson was worried about.  Was he worried about the children on board his reckless DUI school bus?  No, he was worried about himself.  This is about the fact that Mr. Watson received a plea deal where only two days was recommended, and where he only received twelve (to serve on the weekends at his leisure).  

When I was working as a young prosecutor in Raleigh North Carolina, I tried a man for 2nd offense DUI.  He was convicted and sent to jail for one year.  There was no accident, no children in the car, no adults in the car – nobody injured whatsoever.  He was just some guy who got pulled over and failed some field sobriety tests.  That was a serious charge.  He was the first person I sent to jail as a prosecutor.  I’ll never forget the image of a deputy walking up behind the man and putting him into handcuffs.  Imagine if this man, when he was pulled over, had a child in the car?  Imagine if he had a dozen children in the car.  Imagine if he had a dozen children in the car and drove off a 120 foot cliff.  Imagine that he did this with your child in the car, entrusted to his care, and that afterwards he lied and told you that it must have been the Nyquil he took the night before?  My point is, this is about protecting the children.  We should have made an example of this man.  He was a school bus driver for heavens sake!  The citizens of Monroe County trusted him to drive their children to school and back every day!

I have been on the other side of the coin as well.  As a defense attorney in Greenbrier County several years ago, I had a client who was convicted of 2nd offense DUI.  We begged and pleaded to the judge for a light sentence, since he wanted to join the military.  The guy was sentenced to one year in jail – and he actually went to jail for about 8 months before he got out of jail.  He wore the orange jumpsuit and ate the awful food for breakfast, lunch and dinner – everyday.  He did his time.  He didn’t whine or complain.  He served his debt to society. 

My argument is simply this: did this man not deserve a real punishment?  Would it really have been a great miscarriage of justice if this man had really been forced to serve a real sentence in jail?  I don’t think so.  It happens all the time in 2nd or 3rd offense DUI cases.  Is it not more egregious for a man to get drunk and then drive a school bus loaded with children?  And then to actually crash off a cliff?

Since the Editor criticized me for making “no effort to discuss the issue with Mohler before writing [my] scathing assessment…” then I will reiterate the same offer that always exists on this blog – both to subjects of my posts and to casual observers: if you disagree with something I have said, then please, by all means, leave a comment on the blog. As always, anonymity will be maintained where requested.

- John H. Bryan, West Virginia Attorney

Opinion Piece in Register-Herald Regarding Monroe County School Bus DUI

As some of my readers will remember, I was given some flack in the community for speaking out early against this bus driver – Clyde Watson. And as it turns out, Mr. Watson proved himself to be a disgrace after all. The really mind-numbing part of this is, that people in Monroe County love this guy for some reason. It seems he is the “everybody’s favorite uncle” type. The editorial slams Monroe County for the way in which this case was handled.

The editorial places some blame on the prosecutor, and I must now stick up for him with respect to the most-generous plea deal. The previous prosecutor made the plea agreement. No matter how ludicrous the agreement was, it was the current prosecutor’s duty to follow-through with that agreement. It is no different than if he made the agreement himself. So, it was not his fault that the plea agreement was executed.

The paper gave a lot of flack to the magistrate, who gave the guy a 12 day sentence, to be served on the weekends at his leisure. To her credit, she actually increased the sentence from what the previous prosecutor had agreed to recommend – which was 2 days. However, it seems that the guy just walked in and asked to be sentenced quietly – without a lawyer, and without the prosecutor (or any victims) present. The paper did note that the magistrate made a phone call to the prosecutor to make sure that the sentence was okay with him.  Actually, this is pretty much what always happens in misdemeanor cases in magistrate court.

Welcome to the world of magistrate court. The prosecutor is king. The prosecutor wants X, he gets it. The prosecutor wants Y, he gets it. Trust me, I am still waiting on a phone call from a magistrate requesting my blessing for someone’s sentencing. And this is the way things happen. If you are charged with a felony, there is a boatload of paperwork and formal procedure (and legal mumbo-jumbo). But, if you are charged with a misdemeanor, then you are in magistrate court, and things appear, disappear, reappear, and are modified, with not much more than the stroke of a pen or a phone call.  That’s just the way it works.

Observing from the ivory tower is one thing, but in reality, what could have been done differenlty by this prosecutor and this magistrate? About the only thing the prosecutor could have done differently is make sure that the victims were given the opportunity to speak at the sentencing. But then again, that is almost never done in misdemeanor cases.  He could not have recommended or argued for anything more than 2 days.

The magistrate could have reviewed the presentence investigation report (“psir”) prior to the sentencing, and could have scheduled the hearing for a date when the victims and their families could have been there to speak. But in reality, if a psir was prepared, the guy was most likely petitioning for probation, in which case the sentencing should have been in circuit court, where psir’s are regularly prepared and reviewed. Furthermore, this also almost never actually happens in these misdemeanor cases.  Even with felonies in circuit court, this is mostly a formality. The biggest thing of substance that she could have done is to give the guy a larger sentence. How about some real jail time? How about a year in jail? 6 months? How about 30 days of real, actual, jail time? He would have deserved it. But it would have been extremely unusual for a magistrate to stray that far from the recommendations of the prosecutor.  In fact, she already exceeded the prosecutor’s recommendation fourfold….

So if justice was not served in this situation, the Register-Herald can point their finger at the former prosecutor.  But there is no sense in doing that, because he already lost his job, and that probably was partially due to this case.  And nothing positive is served by rubbing salt in his wounds.

Despite the “slap on the wrist,”  Mr. Watson suffered a punishment that is rarely given in misdemeanor offenses: major coverage and castigation in a prominent regional newspaper.  Henceforth, any time someone googles his name, these articles will come up.  It will be difficult for him to ever get past this time in his life…  I don’t know about you, but I would rather do a stint in jail than have your darkest hours broadcasted to the surrounding 5 counties, to live in perpetual existence on the internet.

You can read the full editorial here.

- John H. Bryan, West Virginia Attorney.