Cops and prosecutors in southern West Virginia get preferential treatment when they break the law – Part 1

Note: Since this post was posted I spoke with an elected prosecutor who requested that I insert the caveat that these prosecutors are the exception rather than the rule. I would agree with that perception since there are several prosecutors of whom I think highly. Of course, it is no surprise that there are cops and prosecutors out there who do bad things. None of us have yet attained perfection, we are all sinners. My main point herein is that despite the proven existence of some bad eggs, the system will almost-unconsciously protect their own. But these are relatively isolated incidents and are not necessarily indicative of West Virginia’s cops and prosectors statewide. But, as you will see, and as will be detailed in Part 2, these incidents weave a tangled web in several key jurisdictions. Also, I made one correction to the post. I previously incorrectly stated that the charge of wanton endangerment with a firearm is a misdemeanor, when it indeed is a felony charge. – JHB 10/2/08.

Note 2: I also spoke with a judge – uninvolved in any of these matters – who commented that these problems are due to ineffective prosecution.  It’s correct that it’s not the judge’s fault that a sweetheart deal is made, or that a person is never charged at all.  And some have attempted to construe my commentary as applying to the presiding judges.  That is not correct.  Judges do not make those decisions – usually. – JHB 12/15/08.

For some reason, newspapers don’t like to report scandal and corruption on behalf of cops and prosecutors in southern West Virginia. There are a couple of cases in this past year that I think are noteworthy that most people have no idea about.

There was an assistant prosecuting attorney in Pocahontas County named Anthony Tatano. A “Criminal Complaint” was filed in March of this year charging him with stealing trust fund proceeds belonging to minor clients of his resulting from a personal injury case. The criminal complaint can be found here. I have been unable to find even one article about this from Pocahontas County or any other newspaper in the state. He was charged, but never really arrested. You see, cops and prosecutors are not held to the same standard as the rest of us.

He was charged with a misdemeanor, but if you look up the statute he was charged with, West Virginia Code Section 61-3-20a, “Embezzlement by misuse of power of attorney or other fiduciary relationship,” the statute doesn’t say whether the penalty is a misdemeanor or felony. It just says, “guilty of the larceny thereof.” Okay, so we look to the basic larceny statute for the penalty. Well that just depends on the value of the goods stolen. If they are over $1,000, its a felony. If its under $1,000, its a misdemeanor.

Well this criminal complaint conveniently doesn’t mention how much money was stolen from the children, but given the fact that this was proceeds from a personal injury settlement that were supposed to be collecting interest until the children turned age 18, I can’t image the funds were less than a mere thousand dollars. In fact, I have yet to hear of any personal injury case that was settled for less than one thousand dollars.

So the cops were essentially forced to charge him – because the family was probably complaining and they wanted their money, and because you can’t argue with bank records – but they charged a misdemeanor and remained silent on the amount of funds that were embezzled.

Then, the record goes completely silent until yesterday. An article appeared in the Pocahontas Times, titled “Magistrate Court September 25, 2008.” The article was basically a summary of everything that happened in Magistrate Court in the past week. Buried at the bottom of the text was the following:

Anthony Tatano, of Marlinton, appeared in court on the 19th on a charge of obtaining money under false pretenses. He was released on $1000 bond. On Monday Tatano pled guilty to two previous charges both embezzlement, before Magistrate Miller. On each offense, he was sentenced to six months home confinement, to be served concurrently, fined $250, and assessed $159.53 in court costs.

There was no mention of him being an assistant prosecutor. Was he fired? Did he resign? The state bar website still indicates that his license is active – though I can’t imagine that disciplinary action would not be taken for embezzling client trust funds (especially children). Many lawyers get federal indictments and go to federal prison for this. But not in Pocahontas County. You get a sweetheart deal that nobody even knows about.

This is the standard for prosecutors in southern West Virginia. The law doesn’t apply to them. They are better than you. They know the cops. They are the law. Talk about double standard….

Then there is the case of former deputy Robert Alkire, II. Some of his scandal was actually reported in the Charleston Gazette – but believe it or not, wasn’t even mentioned i the Pocahontas Times (at least not on their website). However, even with the Charleston Gazette, the record goes completely silent.

Deputy Alkire, II, was the son of the Sheriff of Pocahontas County. So he goes to his significant other’s home in his patrol car and with his department-issued firearm. He gets into a “domestic dispute” and fires the pistol during the argument. The authorities show up. The Sheriff shows up.

Is he arrested and taken to the regional jail like Joe Blow would have been? No, of course not. He was taken to the hospital for “medical treatment.” Poor little Sheriff’s son threw a hissy fit and fired his gun, so he obviously had a medical problem that needed emergency treatment. But he was placed on paid administrative leave once the public found out what had happened. Then they decided that had to charge him with something, so they charged him with one count of wanton endangerment with a firearm – a felony – and set bail at a mere $3,000.

Go ahead and try to find another felony charge in the state where a gun was discharged and the defendant was only given a $3,000 bond.

A special prosecutor was appointed – Dan Dotson. Now Dan Dotson is an assistant prosecutor from Braxton County, and he likes to be a special prosecutor. He asked to be appointed to this case, and he also asked, and was appointed, to the Sawyers case in Greenbrier County.

But Dotson soon got the opportunity to reap what he had been sowing. As I detailed in a prior post, he was subsequently arrested in his own little domestic incident, which was reported by the Register-Herald here. But even from his jail cell, he was claiming that he was still “on the job” and that he was just “staying out of the office for a while until [he could] take care of other matters.” Yeah…sure.

Anyways, the Charleston Gazette publishes an article titled “Braxton prosecutor still on the job.” The article states that Dotson plans to go forward with both the Pocahontas case involving Alkire and the Greenbrier case involving Sawyers. But the article also says this:

Pocahontas County Sheriff’s Deputy Robert Alkire II pleaded guilty several weeks ago to misdemeanor brandishing a weapon, Dotson said. Alkire, son of Pocahontas Sheriff Robert Alkire, was arrested for a Nov. 30 incident in which he was charged with firing his department-issue pistol unsafely.

Well if Alkire has already pled guilty, then what is there to go forward with? And did you catch that? Alkire already pled guilty? To a misdemeanor? Where was the article about that? Good luck trying to find it. He got a sweetheart deal because he is a cop and because his father is the Sheriff. He got out of a felony firearms charge without it ever having been presented to the grand jury, then was allowed to quietly plead to a misdemeanor brandishing charge (thus allowing him to continue working as a cop and possessing a firearm). Then everything was completely buried by the authorities. Poor Joe Blow would have had the book thrown at him. He would have been charged with a felony gun crime and would have had his name plastered throughout the papers. But this guy gets a misdemeanor plea with essentially no penalty and no bad press. Like I said, the law does not apply to cops as it applies to you and I – they are the law.

So what happened to Alkire? Let me give you a hint. Say you have a cop who is pretty much forced out of a county where he scandalously shot his service pistol during a fight with his girlfriend while on duty. What would that cop do to be able to continue making a living. What law enforcement agency would actually hire him and give him another gun and badge? Here’s your hint: it’s somewhere in the Greenbrier Valley, and it is a city police department in a town that nobody wants to drive through because the cops are widely viewed as incompetent perpetrators of a small-town speed trap.

That’s right, our very own City of Ronceverte Police Department. If you don’t believe me, take a look at this. That is a link to the City of Ronceverte Police Department where he is listed as a deputy. They also note on their web page that he is equipped now with an assault rifle, ballistic armor and a Glock pistol. Oh great, just what the poor residents of that town need. All this for a town with only 1800 residents. And people wonder why nobody wants to drive through Ronceverte when you can go around it….

And whatever happened to Dan Dotson’s criminal charges? I wasn’t surprised to find out that a google search did not reveal any articles regarding the resolution of his charges. Like I said, he gets the benefit of a double standard here, just like Alkire and just like Tatano, and this most likely is all the information you will find on the resolution of his case. (I’m not a reporter, I’m a busy attorney, so yes, my investigation was limited to googling things).

And there is much, much more. So consider this Part 1.

- John H. Bryan, West Virginia Attorney

The “prevailing wage” is a scam and is holding back WV’s economy

The Register-Herald published an article this morning titled, “prevailing wage hearing held in Raleigh court.” The article discussed a hearing that took place yesterday before Judge Kirkpatrick in the Circuit Court of Raleigh County, regarding the proper method of calculating the “prevailing wage” that workers are required to be paid by employers who are contracted to work on public projects. However, both sides at the hearing agreed that the idea of the “prevailing wage” law is a good one.

The “prevailing wage” law states that the fair minimum rate of wages shall be the rate of wage paid in the locality in West Virginia to the majority of workmen in the same trade or occupation in the construction industry.

Let me decipher this for you. The labor unions are very powerful in West Virginia, and they have their tentacles in every branch of government in the state. They get this bill passed that sounds great to West Virginians: a “prevailing wage” to make sure that evil businesses are not making slaves out of the workers. So, instead of the free market setting the wages as in every other industry in America, we are allowing the government to tell employers what they have to pay their employees. Since the labor unions have their minions at all levels of West Virginia’s gigantic bureaucracy, they essentially get to choose what the “prevailing wage” amount is.

The end result is that the West Virginia taxpayers – i.e., those of us West Virginians who actually pay taxes, including almost every small business, end up paying a gigantic sum of money for any sort of public project, such as road construction, sidewalk construction, guardrail construction, and so on and so forth. This means that those construction flagmen that you see are probably getting paid more than you are, to just stand there all day and waive people through. But this also means that the cost of each of these projects increases exponentially, merely because of the greed of the labor unions and our politicians. And according to an editorial in the State Journal by Craig Blair, most of this money is going to out-of-state companies and workers. Mr. Blair estimates that our state wastes 300 million dollars each year on these overpayment of wages with our tax monies.

While this is going on, our economy is in the toilet. Other workers, who do not have access to our politicians’ giveaways, earn significantly less than workers in the surrounding states. Mr. Blair argues that West Virginia workers make on average $7,932 less per year than the surrounding states workers, and $8,380 less in comparison nationally.

This highlights the fact that there is no “prevailing” wage being paid. There is an artificially-inflated government wage being paid – to the detriment of the rest of the state, and to the detriment of our economy here in West Virginia. For too long in West Virginia, the politicians and their bureaucratic minions have run the economy in the ground. In order to achieve growth and economic prosperity, taxes must be lowered. Who wants to open a small business in West Virginia when you know you are either going to have to pay most of your income in taxes, or you are going to see your roads and sidewalks fall into disrepair? Why not just open your business in North Carolina and not have to worry about it?

We should just let the free market set wages. There is a reason that a guy holding a flag is not worth paying $30 or $40 per hour – because it’s not worth it. Without taxpayer funds, no private market would sustain a business that paid so much for so little value. In a free market, a worker would get his or her feet wet by starting off as a flagman. Then, through hard work and ambition, they would attempt to work their way up the ladder of achievement within their industry or profession. But when the government is essentially the employer, the status quo – or even inefficiency and wastefulness – is par for the course, and is even rewarded.

The next time you drive through a road construction project in West Virginia, take a look at how many workers there are, and note how busy they are. Count how many of them are not doing a darn thing. Then, just remember that your state, your elected politicians, have ordered you, essentially at gunpoint, to pay for each of these guys and gals to have a wage that is exponentially greater than what the private sector would pay, and remind yourself that this is why you pay so much in taxes to the state. Somewhere a bureaucrat and a labor union boss are smiling and counting their money.

This November, keep in mind, that we should elect politicians who will downsize our state government, who will make less laws and regulations, who will lower taxes, and who will put our state and it’s citizens ahead of their own aspirations. The only problem is finding someone like that to vote for….

– John H. Bryan, West Virginia Attorney

Update on Greenbrier County “Cattlegate” Cons

The Register-Herald published a rather lengthy and informative article about Greenbrier County’s “Cattlegate” scandal this morning. I have posted on this matter several times thus far, here, here, here, here and here, and I have noticed a lot of interest in this case from the sheer amount of search engine traffic directed to my site from searches about these individuals. I suppose that some people were relying on me to post an update to this matter since the sentencing was supposed to already have happened. But I really didn’t have any idea what was going on. But, I knew that Register-Herald reporter Christain Giggenbach was on top of it, so I need only wait until he published an article, which I knew he surely would – and this morning he did.

Apparently the sentencing was supposed to have taken place this morning, but it was continued, though there were no motions filed by either the prosecution or the defense. Well why was it continued? Apparently these angelic creatures have turned stool pigeons and are collaborating with authorities in investigating other individuals. But since all these canaries are proven liars, I’m not sure what their help is worth, and investigators better not give their words more than a micro-ounce of a grain of salt. The history books are full of tragedies which have occurred through the utilization of this type of snake-in-the-grass testimony. For example, see this post from Glen Graham at the Oklahoma Criminal Defense Blog.

The sentencings were continued to October 17 at 10:30 a.m. before U.S. District Court Judge Thomas E. Johnston in Beckley’s Federal Courthouse.

So what kind of sentences are they looking at? A lot of people have commented to me that this bunch is going to get away with probation, but that will not happen. They may however, get some type of home confinement, or mixed sentence. With respect to O’Brien, a presentencing memorandum filed by Assistant U.S. Attorney L. Anna Forbes recommended a prison sentence up to 10 years, but “indicated the defendant has provided more information about possible criminal conduct of others who may have filed claims in his multi-million dollar bankruptcy case.” Lastly, she writes to the Court that “a sentence within the advisory guildine range of 97 to 121 months of imprisonment is appropriate.” So fear not, even with his sleazy finger-pointing, he will be doing time.

With respect to Henthorn and *****, the AUSA recommended 6 to 12 months, while their lawyers are arguing for home confinement or a mixed-type of sentence – and they are apparently strenuously snitching as much as the feds will allow, in order to get what they want. Mind you, that all of these defendants already snitched on each other – one even reportedly wearing a wire in a conversation with the others.

I know that there are a lot of people out there, in Greenbrier County, Monroe County – and across the fruited plain – who want the Judge to stick it to them. The AUSA noted in her memorandum that:

“One of the victims is a single-mom with a couple children in college, another is a Virginia cattle farmer with a small farm who lost so much money and was so ashamed by his financial predicament that he could not, for a long time, bring himself to tell his wife about what the defendant had done,” Forbes wrote. “Many of the victims attempted to pursue claims in bankruptcy, a process that left some with unsatisfactory settlements, large legal fees and a sense, because of the perceived misconduct by other creditors, that they had not been treated fairly by the bankruptcy system.”

So this is a great group of guys. Real quality people, and I wish them luck on the 17th.

- John H. Bryan, West Virginia Attorney.

West Virginia Man Charged With Battery for Passing Gas

Once again West Virginia has made national headlines. Linked on the Drudge Report is the headline “Man Passes Gas, Gets Charged With Battery.” I obviously had to click on that one. As I was reading the article I was thinking, “c’mon, give me a break.” Then I saw a “wv” somewhere on the page. I looked around and discovered that this happened in Kanawha County, West Virginia – South Charleston to be exact.

Jose Cruz was arrested for DUI by police in South Charleston. According to the article on WSAZ.com, “when police were trying to get fingerprints, police say Cruz moved closer to the officer and passed gas on him. The investigating officer remarked in the criminal complaint that the odor was very strong.” Jose was charged with battery on a police officer.

There are some pretty funny comments under the article on WSAZ.com. One guy said, “battery is the wrong charge – it should have been assault with a silent but deadly weapon.” Another said, “I guarantee they will use this story as the basis for an episode of “Law & Odor.” Yet another said, “Gas I better stay out of that county.” Someone else coined the term “felonious flatulence.”

Seriously though, this is a waste of taxpayer money, and as the comments prove, a joke. I won’t even bother to analyze whether or not this could be a battery. It should be a crime to charge a frivolous criminal charge. But I won’t hold my breath for that to happen.

– John H. Bryan, West Virginia Attorney

Beware of the Developers in the Greenbrier Valley

For years now I have been seeing outright lies in the advertisements and on the websites of some of these “homesite communities” in the Greenbrier Valley (i.e., Greenbrier County and Monroe County, West Virginia). I was reading through the latest issue of the State Journal this morning, and saw an advertisement for a “premiere homesite community” in southern Greenbrier County, and I immediately rolled my eyes and wondered if these developers actually get away with this stuff.

At the top of the advertisement is says “sophisticated.” I drive by this place all the time, and I am left wondering what is so sophisticated about this development. The roads are not even paved. It’s just a big hilly, rocky, field, and there is not one house built there that I can see. They have a couple of pictures on the ad – one is of a “sophisticated-looking” yuppie-type couple holding glasses of wine and smiling at each other. Is this the same couple featured in all developer’s ads? I think I have seen the same couple on billboards for matchbox developments all across the eastern seabord. Another photo shows a guy playing golf on a course that is obviously nowhere near this development. There is not a golf course with terrain that flat within 100 miles of there, and there obviously is no golf course on that property. But just looking at this ad, you would think there is a golf course. That would be sophisticated, right?

Lastly, there is a photo of a beautiful [huge] rustic home. In reality, however, this home is probably nowhere near this development, but most likely is just a stock photo from the builder who has contracted to be the exclusive builder for the property. It’s possible it could be there, but I don’t think so. You sure can’t see anything from the road, and there doesn’t yet appear to be any construction whatsoever in the development except for the entrance and the gravel roads.

Looking at the ad, you get the impression that you would be joining some exclusive club with a great neighborhood and amenities if you buy property in this development. In reality, it is just a big empty space with gravel and dirt roads. Only a year or two ago it was cattle pasture – and full of rather non-sophisticated “cow patties.” You could walk around out there all day long, and you wouldn’t see any yuppies playing golf or drinking wine. You wouldn’t see any beautiful rustic vacation homes.

And yes, there is more. The ad says at the bottom that the “premiere . . . homesite community” is “nestled between Lewisburg and Ronceverte in Greenbrier County, West Virginia.” That ladies and gentlemen, is an outright lie. The development is far on the other side of Ronceverte, almost to the Monroe County line. It is not between Ronceverte and Lewisburg. In other words, if you were to fly from the development towards Ronceverte, as the crow flies, you would pass over Ronceverte, and then you would pass over Fairlea – where the State Fair of West Virginia is held – and then you would finally come to Lewisburg. Thus, it absolutely is not “nestled” between the two. In my estimation, it is at least a 15 minute drive from there to Lewisburg. Why would they lie about this?

Local developers are notorious for lying about their proximity to Lewisburg, because Lewisburg is the town with all the shops, restaurants and the amenities. They want you to think that this development is practically right in Lewisburg, when in truth it is not.

I know the housing market is in the pits right now, but even when it was doing great, these guys were doing the same sorts of things. The funny thing is, that despite all of this false and misleading advertising, if you actually take a look at any of these places, you will see maybe one or two houses in the entire development, if any – and that goes for about all of them, with the exception of the Greenbrier Sporting Club.

Hopefully people are doing their homework before they make any deals with these places. If the advertisements are lies and misrepresentations, you can only wonder about what they tell you when you meet them in person. Buyer beware….

– John H. Bryan, West Virginia Attorney.

WV Gubernatorial Candidate Fights Medicaid Abuse

I will start off by saying that I’m not endorsing any particular gubernatorial candidate here, but it was interesting to find an article in the Register-Herald this morning about Republican gubernatorial candidate Russ Weeks, who is on a crusade to bring accountability to Medicaid expenditures.

Let me tell you the biggest problem I see with Medicaid, especially in West Virginia. Since people who actually create jobs and support small-town economies (i.e., self employed or run their own business) cannot actually afford [good] health insurance, they actually care what medical services cost them when they are needed.

Say your sister needs to get an MRI or a CT-scan. She goes to the local facility/hospital that has the equipment. The scan takes about 5 minutes. They charge her upwards of $2,000.00. She later finds out that the fair market value of that scan is about $300.00. She complains, but she is told by the hospital that they just use the price as set by Medicaid. In other words, that is what Medicaid pays, so that must be the value of the procedure. The end result is that she is royally ripped off by the hospital. But this also means that the taxpayers are royally ripped off every single day when Medicaid pays inflated prices for medical procedures – prices that would never survive in a free market.

I see this all the time with clients who have been injured in car accidents. They incur a massive debt of medical bills, and they are out of work for a long period of time. Their life is barreling towards bankruptcy. Usually the insurance companies will only cover about $10,000.00 worth of initial medical bills. Then the hospital and doctors want to be paid. Sometimes they are willing to wait for a settlement, sometimes they are not. Between the greedy insurance companies, the greedy hospitals, and the sometimes-indifferent doctors, these poor folks can be backed into a corner. And many times, the true value of the medical services rendered is 1/8 of the debt that is accumulated.

The point is, that there has got to be a better way. And I would start with cleaning up this Medicaid mess, which is nothing but a government-sponsered ponzi scheme designed to enrich hospitals and health care companies at our expense.

– John H. Bryan, West Virginia Attorney.

West Virginia Legal Aid CLE

This morning I attended a West Virginia Legal Aid CLE (continuing legal education), which was absolutely free. Only those of us lawyers who actually have to pay for our own CLE’s could care whether or not a CLE is free.

The first speaker was a Family Court judge out of Charleston, and he gave an interesting presentation on several recent developments in West Virginia family law. One interesting case he talked about was a divorce case where the husband absolutely refused to pay as required under the Family Court Judge’s order. So the Family Court Judge threw him in jail. The other lawyer in the case, went and talked, ex parte (without the other side present) to the Circuit Court Judge, and the Circuit Court Judge issued an order sua sponte (at its own initiative) staying the Family Court’s order incarcerating the guy. As it turns out, this was not a legit legal move. So the West Virginia Supreme Court clarified some things, and gave Family Court judges some teeth in their abilities to impose sanctions, including incarceration, on parties in contempt of their orders. So this judge’s message was that attorneys practicing in Family Court matters better be careful from here out, lest they find themselves at the wrong end of the gavel.

Another speaker was a Federal Magistrate Court Judge from the Southern District of West Virginia, who gave an interesting talk on different types of federal cases that frequent the District. The one thing that popped out at me, and that I was completely unaware of, was the degree to which the federal judiciary goes out of their way to assist federal prisoners in their pro se (without a lawyer) cases before the federal courts. The Judge explained that they do everything in their power to help these prisoners find an attorney to represent them, but that if they are unable, they go over their cases with a fine-toothed comb and construe them “liberally.” It’s nice to know that some parts of the judicial system actually work, and that federal judges actually care about those at the lowest wrung of our society. It’s admirable.

Thanks to WV Legal Aid. It’s hard to beat a free CLE and a free lunch.

– John H. Bryan, West Virginia Attorney

Breaking News: candidates for Kanawha County Prosecuting Attorney Want to Reduce Dismissals

This breaking news was reported in the Charleston Daily Mail today. Reportedly, both candidates for Kanawha County Prosecuting Attorney want to reduce the number of dismissals in their county due to West Virginia’s one-year-out-from-indictment-and-the-case-is-dismissed rule. As they say, shoot for the stars….

Geez, I’ve got to start taking more cases in Kanawha County.

There are lots of excuses for this, such as too many cases and too little funding. However, as Rudyard Kipling said, “there are forty million reasons for failure, but not a single excuse.” Having worked as a prosecutor in an office that had a caseload that was many times larger than Kanawha County’s, I can’t remember one case ever getting dismissed based solely on neglect. Heck, we sometimes went through a thousand cases a day. I guess that if you wanted to set up a system that couldn’t manage the caseload, you could do it. And apparently Kanawha County has done it. The tough part is making it work. But that should be the status quo, not some great achievement.

– John H. Bryan, West Virginia Attorney

ATF is the poster-child of bureaucratic incompetence

As reported by Fox News today, according to an audit, 76 ATF weapons and 418 laptops were lost, stolen or missing over the last 5 years. This rate of loss for weapons is nearly double that of the FBI and DEA. Furthermore, the ATF didn’t even know whether most of its lost, stolen or missing laptops contained sensitive or classified information.

What more can one say? This is government incompetence at it’s best. They tell you what to do with your guns, but they don’t even keep track of what they do with theirs. Then, they set up sting operations to entrap law-abiding citizens into violating one of the hundreds of complex firearm laws that the ATF supposedly “enforces.”

Who’s great idea was it anyways to let a bunch of yahoos with “Special Agent” status regulate our alcohol, tobacco and firearms? Back in the days of our founding fathers, access to these things was part of being American. They were a part of life. Now, the almighty federal government gives you the privilege of having these things, as long as you follow their rules.

– John H. Bryan, West Virginia Attorney.

WV Supreme Court Justice’s Emails Released Under FOIA

The Charleston Daily Mail is reporting breaking news: that email records from West Virginia Supreme Court Justice Spike Maynard to Massey Energy CEO Don Blankenship have been released under court order. The order was the result of a FOIA request and litigation by the Associated Press.

One of the emails contained a link to then-opposition candidate Menis Ketchum’s law firm website, criticizing the types of cases that he accepts. You can see the website for yourself here. Yes, Mr. Ketchum is a personal injury attorney. I’m not sure that is news to anybody. But what’s wrong with representing actual living breathing people who have real problems that were caused by others – i.e., complacent coal companies, reckless drivers, and so on and so forth. Most big-firm lawyers, and indeed the one’s who consider themselves the “elite,” make their living representing legal fictions – business or government entities who cannot feel hurt, pain, sadness, or happiness. These clients, and therefore their lawyers, are concerned only with money. Now there is nothing wrong with money, I believe in the capitalistic system. But I also believe that although personal injury lawyers get a bad name – especially in West Virginia – they are fighting for a real person and their real problems, and therefore advocate for real justice rather than the bottom line.

Another email discussed politics and the election. I guess I just don’t agree with judicial elections in the first place. This is an area of our public system of government that should be off-limits from the corruption of politics. Imagine if our federal judges were elected. It’s bad enough just going through presidential appointments and the senate confirmation process. Imagine if we had national campaign commercials for Supreme Court candidates… That is essentially what we have in West Virginia. It’s not the candidates’ fault. I would run for the West Virginia Supreme Court if I had a chance to win. But the system is wrong.

You know, most out-of-staters, and many West Virginians, have no idea that there is no intermediate court of appeals in West Virginia. We are only one of 8 (I believe) states without an intermediate court of appeals. You can probably guess which those other states are. They are the usual suspects that almost always are hovering near West Virginia on all the rankings lists.

This means that in West Virginia you do not have a right to an appeal. Imagine that. In many cases in West Virginia, including criminal cases, your only hope for appeal is likely to the U.S. Supreme Court. And that is like no appeal at all, because you have about a zero percent chance of getting considered.

– John H. Bryan, West Virginia Attorney.

Lawsuits filed against “Lawless” Montgomery-area police

The Charleston Gazette reported today that several lawsuits have been filed against police officers in Smithers and Montomery, West Virginia, and that several more are to be filed in the coming months.

One of the allegations is that a man and his father were physically and mentally abused by officers after they were pulled over leaving the father’s bar. Another of the allegations is that there was an old-fashioned shake-down of a cab driver.

Does anyone see a pattern here? These small-town West Virginia police departments have no oversight. It was only a few days ago that I posted about the out-of-control officer in East Bank, West Virginia. There needs to be a deterrent to this type of behavior. Then penalty for police misconduct of any sort should be extremely, extremely severe.

For now anyways, the penalty is that the State of West Virginia gets sued. Unlike many states, when the State or other political subdivisions in West Virginia get sued for police misconduct, the liability mostly falls on the state’s million-dollar insurance policy. So, in effect, a town or county – or even the state – doesn’t really have any exposure to liability (at least as long as the state can procure this insurance on their behalf). So being government employees, they have no profit incentive to improve the state of things, and they have no accountability either. Have you ever heard of an “Internal Affairs” investigation in the State of West Virginia? Of course not. The only “internal affairs” division is the attorneys who sue the State on behalf of people who’s rights, and bodies, were violated by bad cops.

– John H. Bryan, West Virginia Attorney.

Officer Fired for Stealing Breakfast

WNBC New York reported yesterday that a Morristown, New Jersey, police officer lost his badge for shoplifting eight breakfast sandwiches from a convenience store. The prosecutor was reported as saying that the plea he entered “represents the fact that no one is above the law.”

So police officers are human… They are sinners like the rest of us. Does this mean that all police officers shoplift? No. But it does mean that they have the same problems, faults, regrets, and wrongdoings as the rest of the general public. And when they are caught in something like this, generally they are prosecuted like the rest of us.

However, where the big difference lies is when laws are broken related to their work as a law enforcement officer. What about the situation where a police officer tells a little white lie on the witness stand in order to validate the search or seizure of some guy who possessed drugs? That is a crime. In fact it is a serious crime – perjury. What about the situation where a person runs their mouth to a police officer and the officer arrests that person just out of spite – but for the charges off “obstruction” of the duties of a police officer? Did that officer not commit a kidnapping? A false imprisonment? An illegal arrest? The fact is, that these crimes are committed by law enforcement officers everyday around the country, and nothing is done about it because the persons charged with enforcing the laws – the cops and the prosecutors – are one in the same, and are not going to investigate or prosecute themselves or their buddies unless they have no choice. And as they see it, what is the harm when you know the person is guilty in the first place? And they are serving the public, right? Why punish some poor cop who is just trying to serve and protect? What motive would they have to ever lie or commit any crime?

The fact is, that society – and the judicial system – likes to pretend that cops are perfect, that they are perfect beings, formed in the likeness of Jesus Christ. That they would never, ever, lie under oath, that they would never, ever, use their badge and gun for their own personal gain or to hurt another who has gotten under their skin. But we, as people with common sense, and as people who observe things with our own eyes know better. We know they make mistakes and commit crimes, and do things they are later ashamed of – just like every other human on the planet.

So who are they kidding? Jurors – if they can get away with it.

– John H. Bryan, West Virginia Attorney

Police Officer Out of Control in East Bank, West Virginia

There was an article in the Charleston Daily Mail this morning about a police officer in East Bank, West Virginia, who was “horseplaying” with his taser, tasering a pregnant 18 year old, and a town firefighter. This same guy filed criminal charges against the town recorder/ police commissioner for “retaliating against a police officer.”

This guy – Sgt. Steve Smith – is absolutely out of control. Where are the authorities here? Somebody has got to reign this guy in, take away his gun and put him on administrative leave. He is cited in the article as describing the taser as a “tool” rather than a weapon. I’m not sure how many tools have a trigger and shoot electrically charged barbs that penetrate your skin to send electric volts through your body… but hey, I guess that is just semantics.

The fact is that this guy is dangerous and has no business with a badge or any kind of weapon. Period. If he does this as “horseplay,” can you imagine what he would do to you if he was arresting you, or even pulling you over for a traffic violation.

It’s very scary that some of these smaller-town police departments in West Virginia have absolutely no oversight, and many of the officers have little experience. If they wanted to, they could pull you over, plant some cocaine, put you in handcuffs and take you to jail. Then it’s your word versus theirs. It has happened… The only thing you can do about it is refuse to live in a community that does not responsibly oversee their police department.

– John H. Bryan, West Virginia Attorney.

7 Years Later…

AP – September 11: U.S. Army soldiers salute three American flags, representing the three sites of the September 11 terrorist attacks on the United States, at a ceremony to mark the seventh anniversary at Camp Liberty in Baghdad.

Cops Shoot Homeless Man 47 Times

As reported by Fox News, citizens in Inglewood, California are outraged about this latest police shooting (the fourth since May). A homeless man carrying a toy gun in his waistband was shot 47 times when he appeared to reach for it.

Is this not disgusting? Cops want to be treated as if they are military. If one of our brave soldiers in Iraq was confronted with this situation, he either would have disarmed the guy, or would have shot him three times in the chest. Even with an M-16, no solider would waste a 40 round clip on one person. But here we are talking about a homeless guy in California. 47 times? 47 times with a toy gun still in his waistband? It’s like these cops develop a culture among themselves where they roam the streets thinking they are soldiers in Iraq. They think they are above the law, and that all of us citizens are their subjects, and that they can kill us at their whim.

And unfortunately, our brave soldiers in Iraq and Afghanistan, through ridiculous rules of engagement, can’t fire on an enemy until they’ve had a bullet practically ricochet off their helmet.

Now, as I have said before, I’m not saying that this is true of all cops, or even many cops in West Virginia. Many of our cops in West Virginia, at least around here, are brave soldiers who have been to Iraq at least once. But I’m sure this is true of many, many police organizations in California, as it is in Florida where I grew up. It is a culture of law enforcement. Especially in Florida where you have a large elderly population. They love cops. They want 10 cops for every one retired person. And for some reason, California just breeds bad cops and incompetent agencies.

And then you have those poor embattled cops in liberal areas of the country, such as Oregon. There, the far left loonies distribute decks of playing cards with cops’ names and faces, encouraging violence against them, when they are only trying to do their job.

– John H. Bryan, West Virginia Attorney.

Some good material for a Wednesday morning…

Thanks to the CrimLaw blog for these.

– John H. Bryan, West Virginia Attorney.

Debate Continues About Searching Lawyer’s Offices

A few days ago, I posted about an extremely troubling trend emerging whereby lawyer’s offices are being searched as part of a criminal investigation of their clients. Since then, Scott Greenfield at Simple Justice picked up the conversation with this post. He first noted mine and Bobby Frederick’s concerns, stating that:

My ilk will go on auto-pilot and pound the keyboard exclaiming how these searches, where the government comes in, seizes everything in sight and sorts it all out later when they can examine every file at its leisure. This blunderbuss approach has been condemned by South Caccalacca criminal defense lawyer Bobby Frederick and West Virginia criminal defense lawyer John Bryan, and their concerns are well-founded.

But he also argued that “when a lawyer gets too close to his clients, such that he becomes a party to their enterprise,” there is a legitimate reason to search for evidence. And in these situations, Greenfield argues that a mutually agreed upon “Special Master” should be appointed to conduct the first level of scrutiny. It seems to me that this is not a bad idea.

But it will never happen – not as long as you have prosecutors who are willing to go between judges to get their warrant, and not as long as you have gullible or malicious judges who grant the warrant without conferring with the first judge. And let’s not forget this is only legitimate in the scenarios Greenfield points out: where the lawyer has helped the client engage in wrongdoing. This absolutely should not apply in a Texas murder case where the prosecutor is merely fishing for evidence with no evidence of wrongdoing by the attorney.

Bobby Frederick, of the South Carolina Criminal Defense Blog, also noted that now “a federal judge in New Jersey is allowing prosecutors to review computer records seized from a criminal defense lawyer’s office, including the files of clients who were not targets of the search.”

Frederick also cited my game-leveling dream scenario where defense attorneys could do the same thing, and concluded that:

This practice, in any situation other than where there is probable cause that a defense attorney is himself engaging in criminal activity and the search is specific and focused so as not to violate attorney-client privilege, is an abuse of process.

And I think that is something we all agree on.

– John H. Bryan, West Virginia Attorney

Caylee Anthony case: perfect example of cops attacking suspects’ families to pressure suspect

As awful as the Caylee Anthony case has turned out to be, and as despicable as Casey Anthony has shown herself to be, Orlando investigators have shown themselves to be unworthy of the motto “to serve and protect.” A couple of problems I have noticed.

First, the event that they staged when they rearrested her, allowing protestors and media to gather outside the families home, when her attorney had already offered to bring her in, was downright malicious. These cops wanted to be on prime time TV doing the “perp walk” with her. They are also apparently enjoying the media pressure that is being put on the family.

Now I could care less about what happens to Casey Anthony, because I am not her attorney and I believe she is guilty of something which led to the death of her child. But the rest of the family – at least her parents – are guilty of nothing. Their lives have been turned upside down. Could you imagine how horrible this must all be for them?

Secondly, these Orlando authorities are allowing protestors to stand on the sidewalk outside the Anthony house – and outside their neighbors’ homes – day and night. These protestors have shown themselves to be violent and disruptive. They are harassing and attacking her family, as well as the neighbors. These cops are maliciously allowing these protestors, and the media, to abuse her family. The purpose is clear: they want to put pressure on Casey Anthony to confess to everything she knows. Putting pressure on her is fine. But allowing her innocent family members to be attacked and abused is wrong. This reminds me of the tactics used by investigators that were exhibited in Gerry Spence’s “Smoking Gun,” where investigators charged the suspects’ young son with the murder that his mother was also charged with – the goal being to pressure the mother to relent and confess to save her son.

Not only are these Orlando cops abusing the family, but they are allowing the entire neighborhood to be abused. What possible justification is there for allowing disruptive protestors to remain in a residential subdivision? Is it not their job to keep the peace? Is it not their job to protect Caylee Anthony’s grandparents from wild-eyed, crazed protestors screaming at them and trying to pick fights with them? Does anyone deserve to suffer through this in their own driveway?

– John H. Bryan, West Virginia Attorney.

Corporate Indifference in West Virginia

The Charleston Gazette ran a story on September 5 about the Bayer plant explosion, which made national news last week. Reportedly, when plant employees called 911, they refused to give the dispatchers details. Upon numerous requests for information, they repeatedly responded that “I’m only allowed to tell you that we have an emergency in the plant.”

The end result was that one worker was killed and a second seriously injured. Citizens living in the area were told to take shelter because of potentially deadly fumes. Furthermore, Bayer refused to report the incident to the National Response Center, which is the clearinghouse for reporting hazardous-materials accidents to the government, until more than two hours after the explosion.

The Charleston Gazette reported on a citizen’s phone call to the NRC:

At 11:15 p.m., Institute native Catherine Davis called the NRC after hearing about the explosion from her mother, who still lives in Institute.

“This happens all the time,” said Davis, who now lives in Arizona. “They never tell anyone.

“We’d go outside, and some crazy flames would be shooting up or we’d smell something and we’d call the plant and they’d say that nothing happened,” Davis said. “But then, three hours later, you hear the emergency broadcast.”

Note that this phone call to the NRC, from a lady who actually lives in Arizona, took place well before Bayer reported the explosion to the NRC. Oh, by the way. Bayer was required by federal law to “immediately” notify the NRC.

Why the spin? Were they buying time to cover their tracks? To destroy the evidence? Or were they just being arrogant and nonchalant?

What possible justification is there for not releasing full information to first-responders and state authorities. What justification is there for not alerting local residents as to what kind of chemicals are raining over their homes? What justification is there that the first report to federal authorities comes from a woman living in Arizona? It seems that the reason many of these plants are in West Virginia has to do with the seeming expendability of it’s citizenry, and the indifference of its state government to do anything about it. There needs to be accountability behind the corporate veil. Accidents happen, but if you cause a dangerous accident, you need to be open and honest with the community and with all authorities, rather than just protecting the corporation.

On September 6, the Gazette ran another story reporting that the EPA is going to investigate Bayer’s reporting delay. It noted the following about the 1986 federal law mandating immediate disclosure:

Under the 1986 law, chemical companies are required to “immediately” notify state, local and federal authorities of releases of certain amounts of certain toxic materials.

The notification must include the chemical name, an estimate of the quantity released and the time and duration of the release. Companies must also include information on any known or anticipated health risks associated with the release and advice regarding medical attention for people who are exposed. Also, companies are required to provide information on the proper precautions, such as evacuation or sheltering in place, and the name and telephone number of a contact person.

Violations can draw civil penalties of up to $25,000 a day, and willful and knowing violations can draw criminal penalties of up to $25,000 a day and up to two years in jail.

Cases like this make me proud to be an attorney who represents “breathers,” actual living, breathing human beings, rather than legal fictions that can act recklessly and irresponsibly all-the-while avoiding any personal responsibility on any one individual for making those decisions.

Maybe West Virginia should unleash it’s army of plaintiff’s attorneys onto Bayer…

– John H. Bryan, West Virginia Attorney.

West Virginia Among The Most Medicated of States

There was an article in the August 29 issue of the State Journal highlighting the fact that West Virginia is among the most medicated of states – meaning that the prescription drugs per capita of its’ citizens is off the charts.

I posted about a related issue back on July 30, titled West Virginia Doctors in Bed with Pharmaceutical Firms, commenting on the fact that a number of West Virginia doctors are getting paid under the table by drug companies to prescribe patients certain expensive drugs, and that to top it off, those doctors names are being secretly withheld from public disclosure.

According to the State Journal article, the number 1 prescription filled in West Virginia is Hydrocodone, which is an addictive opiate. In case you didn’t know, West Virginia has a little problem with pill junkies and the doctors who make a nice living supplying them. Most of these prescriptions are most likely funded by us, the taxpayers, while we are also forced to bear the burden of these pill-junkies committing crimes so they can buy black-market pills once their prescription runs out.

And then there is the issue of the over-medication of children, especially in West Virginia. Any lawyer who has dealt with juveniles in abuse and neglect cases is well aware of the fact that any time a child shows any type of negative behavior, they are inundated with prescription drugs – not just by parents and doctors, but by the State. And the drugs solve the problem exactly 0% of the time.

How do we solve this problem? We let the sunshine in. We expose the doctors who are in bed with the pharmaceutical firms, and the bad doctors who abuse their hippocratic oath. We rein in pharmaceutical advertising. And for God’s sake, we stop using taxpayer money to buy drugs for people.

– John H. Bryan, West Virginia Attorney.

Search Warrants for Attorneys’ Offices is Troubling Trend

Recently there have been a number of cases of search warrants being executed on Attorneys’ offices for the purpose of gathering evidence against a client/target of investigation. One such case was detailed by Bobby Frederick at the SC Criminal Law Blog here on August 23, where attorney George Argie’s office was raided by the feds seeking information/evidence on one of his clients. Frederick correctly notes that the appropriate method of obtaining information from an attorney’s files is through subpoena, in which case the attorney gets a chance to raise the attorney-client privilege before a judge.

On July 31, Frederick posted about the search warrant that was issued in Frisco Texas on attorney Keith Gore’s office, where State officials were seeking items and letters written from his client to his client’s wife. Thankfully, criminal defense lawyers in Texas came out in numbers in opposition to this Gestapo-like tactic.

Frederick recently added an update to that case, citing Grits and Tex Parte Blog, noting that the judge who signed that search warrant has now been recused from hearing the capitol murder case.

It is sickening to see that there are prosecutors out there who would go between different judges to get an illegal search warrant of an attorney’s office. If that is legal, then I would like to see a mechanism put in place whereby the lawyers of criminal defendants can obtain their own search warrants to be executed on prosecutor’s office. Say, for instance, that you know a certain prosecutor has a video tape that would exculpate your client. He refuses to hand it over, or to even acknowledge it. You could get a search warrant and have your private investigator execute the warrant and look for the tape. Yeah right. That’ll be the day. The sad fact is, that prosecutors are perfectly willing and able to abuse their power and not only will many judges not stop them, some of them apparently will help. I’m just glad I don’t practice in Collin County Texas.

– John H. Bryan, West Virginia Attorney.

You never really know what did it…

After about an hour and a half of deliberations on Friday, my Greenbrier County jury came back against my client in a civil jury trial. I really thought we had a good chance of winning. But such is the character of civil juries. In civil cases, you never really know what the jury is going to do. They are unpredictable. They could go either way based on something that both sides never even thought was important. On the other hand, in criminal cases, the jury 90% of the time is going to convict. That is what you can expect. Your struggle is one of the underdog.

There was something unique about this jury though – it had a criminal defense attorney on it. Usually it is a bad idea to leave a lawyer on a jury, and it may have been this time. I made a gut decision to leave him on based on a subtle nuance of the law that I thought he would understand and explain to the other jurors. But I suppose that is a two-way street. And then again, it could have been some fatal flaw in my client’s factual case that swung the jury. The fact is, you never really know.

There is no second place, but it is always good to know that in this situation your client is satisfied that you did the best that possibly could have been done given the circumstances. Sometimes you are just backed into a corner, and in this case, there was no possibility of settlement, so it was just up to the jury. And good or bad, you usually just have to live with the jury’s decision.

– John H. Bryan, West Virginia Attorney.

Common-sense Sentencing

This morning I witnessed the sentencing of a young man who, by driving drunk, killed his two best friends who were passengers in the vehicle he was driving. He cried remorsefully to the judge, and then both mothers of his deceased friends spoke to the court. They both pleaded with the judge to be lenient, and to give him community service in lieu of an active jail or prison sentence. One of the mothers suggested that he be required to talk with high school kids in the area about the dangers of drunk driving. There were a lot of tears all around, and it was quite moving to witness this.

In the end, the judge gave him about 2 1/2 years and suspended the sentence, giving him 2 years probation and 200 hours community service. As part of the community service, the judge implemented the suggestion of one of the grieving mothers, that he speak to high school kids about the dangers of drunk driving. Most defendants in this situation have the book thrown at them, and indeed they deserve it for robbing the lives of others because of their own foolish selfishness. But in this case, you could see that the kid was really suffering for what he had done. And the mother’s had lost everything, and this was closure to them. This young man was the best friend to both of their sons. To send him to prison or jail would not have helped anybody. Hopefully he will have an impact on some young kid sitting in a classroom, and a future tragedy will be prevented.

– John H. Bryan, West Virginia Attorney.