Tired of domestic violence petitions…

That’s it, I’ve had it. For too long domestic violence protective orders have been abused in West Virginia. The first one to the magistrate court wins, and wins big. They get the house, the kids, the money, the property, etc., for at least 180 days – usually for good since the divorce usually follows.

999 times out of a 1000 these cases are bogus. Everyone, the lawyers, the judges, the cops, know what is going on. They know the system is being abused, yet for some reason the judges refuse to deny these things. The law says that “domestic violence” must be proven by a preponderance of the evidence before they can be granted. Yet, they are routinely granted in every single case – at least where women are the petitioners. All they have to say is that she was “placed in reasonable apprehension of physical harm.” That’s not domestic violence, that’s a scam. One of the only ones I’ve ever seen denied is where the petition was filed against a cop. In that case, since the cop couldn’t work if it was granted, the judge went out of his way to analyze the facts and generously apply the law. But not for you Mr. Joe Blow, your screwed.  You have no rights.  Your lucky you’ll even get to see your children for the weekend two weeks from now.  And don’t even think about complaining or else those visits will be supervised.  What did you do wrong?  Your a man.  

But I have seen one issued against a woman by a man who was allegedly the “victim” of domestic violence. And the man was a police officer.  And what benefit did he receive?  The house, the kids, the personal property.  He knew how to abuse the system.  What a crock….

- John H. Bryan, West Virginia Attorney

Macs are an advantage in a law office

When I started my own firm, I was absolutely resolute that I would use Mac computers exclusively, and looking back, I’m extremely glad that I did. Most other law offices, and indeed almost all in the Greenbrier Valley, are PC-based. So I was used to using them in a legal setting, with programs such as Time Matters for law office management. But I had almost always used Macs at home, and loved them for their efficiency and all-around superiority.

So I outfitted my law office completely with Macs. And others have as well. In fact it was easy to figure out which programs to use given the online resources that now exist. For instance, there is the MacAttorney website by Randy B. Singer, that features a comprehensive list of law-related software for Macs. Another great site is The Mac Lawyer blog by Ben Stevens, which in itself has just about everything you need to know about using Macs in law offices. Then there are a couple of email discussion groups: MacLaw Online, which is probably the most popular, and there is MILO (Macs in Law Offices) listserv, of which I am a member. Another great blog on point is the Home Office Lawyer by Grant Griffiths, which has a wealth of information on Mac law office technology. (Update: thanks Mark Bennett for suggesting Criminal Defense Law With an Apple)

So what is the advantage? First of all, Macs don’t get viruses – they don’t slow down. They are more efficient to use. They are so simple to use, and so well organized, that it saves time. But most of all, the technology is better. It’s hard to explain, you’ll just have to either take my word for it or try one for yourself.

Here are some of the programs that I use:

- Apple’s “Mail” for email;
- Apple’s “Calender” for calendering, and then I also use “Busysync” to coordinate instant synchronization across multiple computers in “Calender”;
- Apple’s “Ichat” for network communication between offices and computers. This is also handy for relaying files along with messages between staff members – then the messages can be saved along with their time and date stamps;
- Circus Ponies’ “Notebook” which gives you an electronic version of a litigation binder, with colored tabs that can be arranged in any fashion you want;
- Apple’s “Preview” which allows you to preview almost any type of file without actually opening it, and allows you to do a fair amount of manipulation to .pdf files;
- Apple’s “Pages” for word processing (I don’t miss Word Perfect). I also use “Maclink Plus Deluxe” to convert old Word Perfect files to files readable in either Word or Pages;
- Apple’s “Keynote” for presentations (Its way superior to Power Point);
- Apple’s “Contacts” for maintaining contacts;
- Bright Light Software’s “Easytime” for law office management and billing;
- Apple’s “Iphoto” for organization of case-related photographs;
- Apple’s “Itunes for organization of case-related digital statements;
- Apple’s “Time Machine” for backing up all files;
- Roxio’s “Toast Titanium” for burning DVD’s or CD’s;
- I also use “PDFpen” for more advance manipulation of .pdf files. For instance, when I attach exhibits to pleadings, I use .pdf pen to place electronic exhibit labels on any particular exhibit.

And there are probably more that I am leaving out. But the great thing about it is, many of these come with Macs as standard software. To take advantage of the Mac platform, you really need to scan your files, and that is why I scan everything that comes in and goes out of my office. So, I can instantly pull up any document in any file in any case on my Mac without ever having to leave my desk. This also allows me an instant electronic backup of all files. Another feature I like is the ability to share screens between computers in your network. You can simultaneously view and actually use someone else’s screen and make changes to documents on their computer from yours.

There is much, much more to discuss when it comes to using Macs in a law offices, but there are some great resources out there, and some much more knowledgeable people than I, on the subject. But I have no doubt that using Macs and the latest technology helps me and helps my clients.

- John H. Bryan, West Virginia Attorney

Practical Advice for Anyone Accused of a Crime

Glen R. Graham, of the Oklahoma Criminal Defense blog, recently posted the “Practical Advice for Anyone Accused of a Crime.”  Most aspects of the advice also ring true in West Virginia.  For instance:

I would tell you to keep your mouth shut and not to discuss your case with anyone because they can become a witness against you — even involuntarily — if the prosecutor subpoena’s them to testify. Do not bring your family into my office to discuss the facts of your case in their presence because they may become subject to an involuntary subpoena by the prosecutor at a later time.

This reminds me of the first time I learned a big lesson that probably every criminal defense attorney learns at some point.  The client as charged with fraud in a fairly high profile case, and I bought into the client’s story hook line and sinker.  Based on the assumption of the correctness of the client’s version of the facts, I advised the client not to take the initial plea offer, which was pretty good.  But the plea offer was only good up and until the case went to the grand jury.  We didn’t take it.  But at the grand jury, several close family members ended up being subpoenaed, and guess what?  Apparently the client had confessed to each of them privately, and I had no idea.  The family members, facing prosecution for perjury, were forced to reveal the confessions to the grand jury.  He was indicted on their testimony, and ultimately forced to take a less generous plea deal.

What was the lesson?  When it comes to considering plea deals, you have to assume that your client is guilty and that he or she is lying to you, because you don’t always know it when they are, and the one time you do, you’ll get burned.  And secondly, clients need to keep their mouth shut around their family members – even their spouses in some instances – because an aggressive prosecutor can subpoena all of them before the grand jury, scare the living daylights out of them, and force them to reveal what you told them.

 - John H. Bryan, West Virginia Attorney

Menis Ketchum a good choice for West Virginia Supreme Court

I usually don’t get involved in politics, but since I fight every day to protect people’s rights and defend the constitution, I consider this post my duty as a constitutional defender and champion of the little guy.  There was an article in the Register-Herald yesterday, entitled, “Ketchum pledges one term, to bring experience to court,” that I suggest anyone looking for more information about West Virginia’s Supreme Court race read.

Ever since the 2004 election, the West Virginia Supreme Court races have become overly politicized, which begs the question: why should they be political races in the first place?  Are elections the best way to achieve justice and seat the most qualified Justices?  I argue that they are not.

In the article, Ketchum is quoted as saying:

“I just received an e-mail with an article from the New York Times that just blasted our court,” Ketchum told The Register-Herald editorial board. “It’s talking about the U.S. Supreme Court is going to try and fix the corrupt West Virginia Supreme Court.”

Not only that, but now there is even a John Grisham book that openly mocks our Supreme Court elections in West Virginia.  It needs to change.  Ketchum continued:

“They must insulate themselves,” he said. “You go to work, you do your job and you stay out of the limelight. That has to be done to get the appearance back that our court is judicial.”

Ketchum believes an independent commission made up of regular citizens should make the decision if a Supreme Court justice should be recused from a case.

“I think it’s too much on the justices to ask them to recuse themselves from cases,” he said. “I do not think it can be circuit judges put on a commission because they work for the Supreme Court.”

This is exactly what we need.  Reform of our judicial process, but not a reform that takes rights away from people and gives more rights to insurance companies and big business.  We need reforms that give more justice, not reforms that take it away.

And for these ideas, Menis Ketchum has been viciously attacked.  He has been attacked by his opponents, by sitting Supreme Court Justices, and by big business and the insurance companies.  And why have they been attacking him?  Because he dared to represent plaintiffs in their fights for justice.  These are the types of cases they consider “frivolous” lawsuits.  Cases such as these: where a hard-working steelworker or coal-miner, who works hard every day to support his family, is injured by a reckless driver through no fault of his own, and as a result, is left with no income, mounting medical bills, and looming bankruptcy; or where an 82 year old grandmother is denied a necessary operation due to a technicality in an insurance companies’ fine print. I see these cases everyday, and I feel for these people.  I am proud to fight for them against emotionless and greedy insurance companies who want nothing more than to deny them coverage and leave them helpless.  Of course, not all corporations are heartless, but many are, and all insurance companies are.

Since when is it a bad thing to represent living breathing people with real problems?  People suffer. Since when is it a good thing to represent a corporation or insurance company who is concerned only with the bottom line?  Any insurance company would wrongfully deny coverage in each and every case if they thought they could get away with it.  They have legions of lawyers working hard every day to get them as close to this goal as they can get.  Is that who you want on the Supreme Court?  Someone who has an agenda aimed at insulating business from those pesky little people who work for them, with them and around them?  Not I.  I want judges and justices who will give fair and equal access to everybody, rather than ones who get elected on the platform of denying rights to individuals in order to promote a “better business climate.”

Lastly, Menis Ketchum has the greatest qualification for West Virginia’s highest court: experience.  Real experience: trying jury trials.  He has more jury trial experience than all the other candidates combined. You can’t decide cases unless you’ve been there before, and you can rest assured that Menis Ketchum has been there.

This is not a partisan argument (I am a conservative NRA member and the son of one of the most ardent tort reformers around), and this is not an argument against any of the other candidates.  In fact two need to be elected.  I just think that Ketchum is the most qualified, and that the attacks on him are ludicrous.  I just believe in equal access to justice. Justice not just for the big companies, insurance companies, and large law firms.  But justice for the little guy – and those pesky little lawyers who represent them.  

And, most importantly, any judge or justice should have experience representing criminal defendants. Period.

 - John H. Bryan

Kanawha County Sexual Abuse Case Dismissed

As reported in the Charleston Daily Mail this morning, Kanawha County Circuit Court Judge Irene Berger dismissed a case against a former Chesapeake youth pastor accused of sexually abusing a 16 year old girl.

The article reports that the defendant, Timothy C. Edmonds, was scheduled to go to trial this Monday.  But Judge Berger ruled that the state had taken too long to bring an indictment against Edmonds, and dismissed the case.  Assistant Prosecutor Michelle Drummond said the state would present charges again to a grand jury to get a superseding indictment.

In West Virginia, criminal cases can be dismissed due to pre-indictment delay, however, they are only dismissed “without prejudice,” which means that the case can go back before a grand jury.  But, after an indictment is returned by a grand jury, the case must go to trial within one year of the indictment (i.e., the “three term rule”), or even within the first few months (i.e., in the same term of court) if the defendant invokes his or her right to a “speedy trial” (i.e., “the one term rule”).  Dismissal on these grounds is more like a criminal statute of limitations, and is “with prejudice” and therefore permanent.

It seems most likely here that the dismissal was due to pre-indictment delay, though there must have been an indictment returned some time ago since the trial date was this-coming Monday.  Apparently the guy was first arrested and charged via “Criminal Complaint” over 2 years ago.  And what was happening in the meantime?  There were civil cases filed, litigated and settled, involving a “large sum of money,” according to defense attorney John Sullivan.  

If this guy is “guilty as sin” as the victim’s mother is vocally announcing to the newspapers, and if the state has overwhelming evidence against him, as they are suggesting they have, then why wait 2 years to bring him to trial?  Is it proper for the Prosecuting Attorney to file criminal charges, then delay the case for the victim’s civil lawsuits, before finally bringing a criminal trial on the charges?  I don’t think so, and apparently Judge Berger didn’t either.  If your going to prosecute someone, then prosecute them.  The prosecutor should not be coordinating the criminal case with the victim’s civil lawsuits.

 - John H. Bryan, West Virginia Attorney

Candidate for Cabell County Magistrate Arrested – displays troubling trend in WV’s lowest court

The Herald-Dispatch is reporting this morning that Amy Walker Daughtery, a Cabell County candidate for Magistrate – who is a Democrat and the lead vote-getter – was arrested on Tuesday for “broker[ing] a $20 crack cocaine deal, admitt[ing] to five similar transactions and tr[ying] to bribe a Huntington police officer.”

What is going on with these Magistrates and candidates for Magistrate across West Virginia?  I have posted on prior cases that just blow your mind  There are some prior cases (also this one) which I have not posted on which will also blow your mind.  Had these arrests not taken place, and had I or someone else made the allegation that this type of behavior was going on, nobody would believe it.  People would dismiss it as a conspiracy theory.

It’s just beyond the pale.  According to the Herald-Dispatch, she requested the drugs via telephone, and then arrived at the set location – a Rite Aid parking lot – where she met an undercover state trooper who gave her .4 grams of crack cocaine in exchange for $20.  Then, as she was being booked in the very magistrate court office where she was hoping to sit in judgment of others, she attempted to bribe the Huntington police officer who was booking her.  Reportedly, she said she would give him money “if he would release her from custody at that time and location.” 

Daughtery was charged with felony bribery and six counts of possessing with an intent to deliver crack cocaine.  Then, she was arraigned by her opponent in the magistrate court race – Magistrate Mike Woelfel.  I bet he is counting his lucky stars this morning.  According to the article:

Before the May primary election, Daugherty told The Herald-Dispatch she believed common sense was the most valuable asset for a candidate to possess, and said she would learn enough about the law as she heard each case.

During the primary, Daugherty led the way in the 18-candidate race all evening. She captured 7,041 votes, or 9.43 percent of the vote. She promised to bring integrity as well as common sense to the office if elected in November.

“Am I happy? I don’t know if that is the word,” she said the night of the May primary. “I’m shocked. I’m numb. We need new blood down there and we know that. Everybody knows that. I’m ready to build up the faith and confidence back into the magistrate system.”

Wow, the people of Cabell County should also be counting their lucky stars.

The article also reported that investigators questioned Daugherty for nearly two hours at the Huntington Police Department.  Obviously not much common sense there.  She should have read my post from a couple of days ago about keeping your mouth shut.

Apparently she received an endorsement from the union of the Huntington Police Department.  Nonetheless, they investigated her and took her down.  Bravo to the West Virginia State Police, as well as the Huntington Police Department’s Drug and Vice unit and Violent Crime Drug Task Force for maintaining integrity our lowest wrung of the West Virginia judicial system – I wish other agencies across West Virginia would be open to doing the same.

 - John H. Bryan, West Virginia Attorney

McDowell County Troopers Awarded Medal of Valor

Although I am a frequent critic of police misconduct, it goes without saying that the profession of law enforcement is an honorable one, and there are true heroes among their ranks. On July 25, two state troopers with the Welch detachment in McDowell County put their lives on the line to save numerous individuals from a fire in an apartment building. There were 31 families living in the building, including some with physical disabilities. Everyone got out alive.

Cpl. C.F. Kane and Senior Trooper J.S. McCarty were subsequently awarded the Medal of Valor by Governor Joe Manchin. And that truly is the meaning of “to protect and serve.” Bravo to troopers Kane and McCarty.

You can read the full story in the Bluefield Daily Telegraph.

– John H. Bryan, West Virginia Attorney

“Cattlegate” Poll (anonymous)

BREAKING NEWS: “Cattlegate Cons” Sentenced

[Note: at the polite request of innocent family members, I replaced the name of the least culpable defendant with ****.]

Surprisingly, it appears that I am the first to break this story – that the “Cattlegate Cons” were sentenced this morning by U.S. District Court Judge Thomas E. Johnston as follows:

O’Brien was sentenced to 97 months of active incarceration and 3.4 million dollars in restitution.

Henthorn was sentenced to 9 months of incarceration and a $75,000 fine.

***** was sentence to 5 months of incarceration and a $50,000 fine.

UPDATE: Apparently now there is a Charleston Gazette article confirming this now online.

ANOTHER UPDATE: The Register-Herald has now published a lengthy article on the sentencing yesterday.  Reporter Christian Giggenbach noted in the article that Judge Johnston made some interesting observations about the case during the sentencing hearing.

Johnston also railed on Henthorn, 46, of Lewisburg, for abusing his position of trust in the banking community. He also insinuated this was probably not the only illegal act Henthorn had committed.

“You were living a privileged life and you threw that away,” Johnston said. “This is an example of what can happen when you allow greed to overcome you.”

Henthorn also apparently attempted to get his probation officer to remove negative letters that were going to the judge.

Former FNB board member James C. Justice II of Beckley was among family and church members who wrote letters in support of Henthorn. One document filed by a court official indicated the defendant called his probation officer on June 4 and asked her if “she would remove the negative” letters from his support file.

“The probation officer responded she would not do so … Mr. Henthorn was obviously upset by this answer and ended the conversation soon thereafter,” wrote U.S probation officer Peggy Adams.

Can you believe the arrogance of this guy?  Judge Johnston also questioned why First National Bank of Ronceverte was suspiciously absent from this entire ordeal – despite the fact that their President and Board members caused this whole mess.  According to the article:

Johnston also asked a rhetorical question about Henthorn’s former employers.

“I’m puzzled by the fact that First National Bank has not participated at all in this hearing,” the judge said. “I expect the whole story has yet to be told.”

However, there was a former board member and one former president of First National Bank there supporting Henthorn and *****, respectively (see Justice above).  According to the article:

****** had about 15 friends and family members present for the hearing, including former state Commerce Secretary and ex-FNB president Tom Bulla, who Johnston vocally noted had come to support ******. Johnston said individuals filed more than 100 letters of support for ******, “the most I’ve ever seen in a case.”

So, “FNB” was not completely absent, they were represented by former officials – who were there to ask the judge to be lenient.  I would note that one of those former officials himself resigned from the board only shortly before ***** and Henthorn themselves resigned from “FNB,” which was reported publicly, but not explained.  Don’t you just love banks?  Their only motivation is money, and even when their hands are publicly caught in the cookie-jar, they can just switch presidents and board members, and continue on foreclosing on people’s homes who do not have connections to the Board, and making sweetheart loans to crooks like O’Brien, who do have connections to the Board.  For too long citizens have been abused by bank boards using their positions to help their buddies and harm innocent folks.  A bank would slit your throat if they thought they could make a buck.  And lawyers get a bad name….  

To *****, Judge Johnston had this to say:

“You participated in a sorry effort to cover this up … which almost resulted in an obstruction charge,” Johnston said. 

“Is this the way business is done in Greenbrier County? By being present when a bribe is slid across the table to a bank president?

Johnston then asked why ***** would have risked so much by setting up the bribes, but then not receive any money in return. Johnston also suggested this was not ***** first brush with illegal activity. Forbes told the court ***** turned down bribe money when approached by O’Brien.

“Why would a man of your experience get involved with this?” Johnston asked.

Lastly, the Register-Herald article noted that the case is still being investigated, and that the defendants will most likely enter prison within the next 30 to 45 days.  It will be interesting to see whether Judge Johnston is right that “the whole story has yet to be told….”

Note: There also is a new Charleston Gazette article this morning.

- John H. Bryan, West Virginia Attorney.

Greenbrier County’s “Cattlegate” not typical fraud case?

Regarding the Greenbrier County “Cattlegate” case, the Register-Herald published an article this morning detailing defendant Kevin O’Brien’s presentencing memorandum filed by his defense attorney, in which his attorney states that this was not a typical fraud case because “many of his victims’ losses were unintended.”

Since when are ponzi schemes and check kiting not typical? It sounds like every other “white-collar” federal fraud prosecution that hits the headlines. I guess the word to pay attention to is “many.” There were a lot of victims, some of which were obviously intended. When you “sell” some poor sap a herd of cows that either don’t exist, or that you have already sold to someone else, you darn well intend to cheat that person out of their investment. Of course there were others that he didn’t know about. When you cheat someone, you also cheat others who were depending on the person you cheated. Although you may not intend to directly cheat those people, it is absolutely foreseeable that others will be affected and harmed.

O’Brien’s attorney argues that he will never be able to operate the same type of scams again because of the media coverage surrounding the case.

“Because (his) criminal prosecution has received a tremendous amount of media coverage in his community, it is highly improbable that individuals will place the trust in him necessary to engage in the same criminal conduct upon his return to the community.”

Yeah, but what if he moves to Florida? I guarantee that nobody there has ever heard of him. He could change his name, or use a pseudonym – and Florida is the third largest cattle-producing state. He could go right back into business. He obviously has no qualms about running a scam. He probably only regrets getting caught. If ever in the future he things he can do something like this again and get away with it, do you think he will hesitate? People would have no idea about his prior prosecution. But maybe if he serves a long stretch in federal prison, his desire to be a free man will overwhelm his greedy criminal tendencies.

– John H. Bryan, West Virginia Attorney

Don’t talk to the police

I came across a great video lecture from a law professor posted on the Georgia Criminal Law Blog that everyone should watch – attorneys and laypersons alike.

Don’t talk to the police, at any time, under any circumstances. Period.

The latter half of the video features a cop telling “the other side of the story,” and was the subject of a previous post by Scott Greenfield, titled “One Lecture By a Cop with Many, Many Lessons,” who commented that this displayed some revealing insight into the practice and procedure of police “interviewers.”

– John H. Bryan, West Virginia Attorney

This blog quoted in yet another newspaper…

Just by chance, I glanced at Summers County’s the Hinton News, which I receive via mail once a week, and saw a rather long letter to the editor, attacking one candidate for Sheriff and promoting another. That’s not too unusual this time of year, but I noticed the last paragraph contained a quote from myself, as posted here back in February.

I would just like to note that I was making a broader point about small West Virginia counties and the elected position of Sheriff generally with regards to experience and origin, and I was not, nor currently am, supporting any particular candidate. Although I was saying something favorable towards this particular candidate, I was not contrasting this with the current opposition candidate, because at the time there were numerous other candidates running for the party nomination.

Of course, I don’t know that either candidate really wants the support of a criminal defense attorney anyways….

– John H. Bryan, West Virginia Attorney

“The Truth About Hiring a Criminal Defense Lawyer”

Miami criminal defense lawyer Brian Tannebaum, e-book titled, “The Truth About Hiring a Criminal Defense Lawyer,” is a must-read for persons facing criminal prosecution. One of the unsavory aspects of practicing criminal defense is dealing with those clients who have misconceptions about criminal defense attorneys, and this e-book blows some of them out of the water. Hard copies of this text ought to be handed out to arrestees during booking (that would have to be by law of course, and not due to the arrestors desire to help out their arrestees).

On the importance of having the right attorney, he states that he is not talking to “the first time offender on a non violent minor case who has no aspirations to ever accomplish anything, like obtain credit, a mortgage, a job requiring a license, or about 300 other things that now subject people to a criminal background check. If you are now, and will be the rest of your life, a complete nothing, forget the lawyer and just handle it yourself.”

On the topic of “money,” he advises never to “call a lawyer you are thinking of hiring and ask how much he charges. He will immediately think you are cheap, broke, and that you will waste his time in a consultation.” He advises rather that you should hire a lawyer you feel comfortable with, who charges more money than you wanted to spend.

On the topic of lawyer advertising, he advises people not to fall for any type of advertising, but rather to requests referrals from those you trust, and then to do your research: visit websites, google their name, and ask some specific questions at the consultation, such as how much of your practice is criminal defense? (Anything under 50% leave, now).”

On the topic of “former prosecutors” advertising themselves as “former prosecutors,” he advises to hire one based only on his defense experience, and “definitely make sure if he has recently departed from the office, you ask why he left (no one ever does). And by all means, he says, stay far away from those former prosecutors who leave for civil firms and “take” some cases, since “they’re about as committed to criminal defense as the real estate lawyers in the firm.

Regarding “connections” – and this is a topic that I have frequently encountered – he advises those seeking a criminal defense attorney to disregard them. I have heard of many, many people going with a certain lawyer because of his or her “connections” with the judge or the prosecutor – or whomever. On this phenomena, Tannebaum states that no “incorruptible judge is going to suppress evidence because she’s friends with the lawyer, no prosecutor is going to ‘take a dive’ in court because he’s on the defense lawyer’s basketball team, and the most you can expect from a police officer is that because he knows the defense lawyer (and if he doesn’t hate the client for telling him to screw off at the arrest scene), he may tell the prosecutor to give you a break). He notes that “a good criminal defense lawyer with a great reputation has serious connections in the courthouse, and doesn’t talk about them. I once had a prospective client tell me that he was going to hire another attorney because he was told that this attorney plays golf with the judge (despite the fact that I knew this attorney did not play golf at all). Criminal defendants with this type of attitude usually end up getting bad results.

All-in-all, this is great advice that is not commonly known among those shopping for a criminal defense attorney, and although there are some other topics I would add, these are some of the most common misconceptions and mistakes made by those seeking criminal defense counsel.

I would add, that, before you commit to hiring a certain attorney, watch that person in the courtroom. Criminal defense attorneys are commonly in court, usually several times per week. You can tell a lot about what kind of representations you will get just by watching the person in routine motions or appearances before the court. And if you get an opportunity to watch the person try a case, then by all means, that is the most telling of all.

– John H. Bryan, West Virginia Attorney

Monroe County Jury Trial Today

I haven’t posted for a few days, and will not be posting today, because I have a felony criminal jury trial in Monroe County. If it doesn’t go well, I’ll just skip the part where I post the results….

UPDATE: Big win last night. The jury deliberated far into the evening and eventually hung on count 1, which was felony wanton endangerment with a firearm. They came back not guilty of count 2, which was felony wanton endangerment with a firearm, but guilty of the lesser included of brandishing, which is a misdemeanor. And they came back guilty of count 3, which was a misdemeanor battery charge, which was expected and really not opposed.

It was a difficult case, and was argued well by the prosecuting attorney, and bitterly fought by myself. And in the end my client didn’t walk out of the courtroom a convicted felon – and with a mandatory penitentiary sentence and three year bar for parole – and that was my goal. Though extremely unlikely, the prosecutor could try my client again on count 1, but like they say, we’ll cross that bridge if we get there. Every trial is a mini-war, and you have to fight it one battle at a time. I’m pretty confident though that this war is over.

This result further strengthens my respect for the right to a jury trial. Everyone else can write you off, but in the end it’s up to the jury. And we can all be comfortable knowing that we have that right.

Prosecutors need to start offering me better pleas. This is the third felony criminal jury trial in the past year where my client and I have been backed into a corner, forced to go to trial, and achieved either a unanimous and complete acquittal, or at least one unanimous acquittal and beaten the plea offer.

And I have another criminal felony jury trial on deck for next month, and so, like it or not, I will remain on the warpath… 

- John H. Bryan, West Virginia Attorney

More Police Misconduct in Montgomery, WV

It was only a week or so ago that I posted about some lawsuits that were filed against the Montgomery, West Virginia, police department. Now more lawsuits have been filed, and the FBI has opened an investigation.

According to an article in the Charleston Gazette this morning, there are three incidents being litigated and investigated, and they all surround Montgomery police officer Matthew Leavitt. Leavitt was suspended after being accused of beating Twan Reynolds on September 26.

According to the article:

Twan Reynolds and his wife, Lauren, accuse Patrolman Leavitt and Patrolman Shawn Hutchinson and of repeatedly hitting Twan Reynolds over the head with a blackjack, kicking him in the back and spraying his eyes with Mace at close range.

They filed a lawsuit in Kanawha County Circuit Court last week.

They also say Leavitt repeatedly used a racial epithet against Twan Reynolds, who is black, and Lauren Reynolds accused Leavitt of licking her on the neck during an interrogation and saying, “Little whore, you like it like that.”

Leavitt and other officers are accused of other acts of violence, and of saying things like this:

“He threatened to ‘blow my fat black ass away,’” White said. “He said, ‘Bitch, I own you. I own the streets of Montgomery.’”

“When he handcuffs me, he throws me against the car and told me to ‘Quit screaming like a little bitch.’”

“I said they were going to jail for neglecting me,” Carr said. “Then Leavitt said, ‘You can’t prove shit,’ and hit me in the head with the nightstick.”

And then there were things that he said to the newspaper:

“She is a constant nuisance,” Leavitt said, adding that the girl had been in juvenile detention in the past.

“Even if I was the biggest racist on earth, which I am not, that would seal my coffin as a police officer,” Leavitt said. “I would not be stupid enough to utter that word while wearing a badge. … That is just stupidity. But again, that is the first allegation I face if a suspect is black.

“I can’t help the fact that I was born a white man. I don’t care that I was born a white man. It just so happens that the majority of the criminals in Montgomery, due to demographics, are African-American. When I worked in Smithers, most were white.”

For what it’s worth, juvenile proceedings are supposed to be sealed and confidential, and it’s completely inappropriate for a police officer to make statements to a newspaper regarding someone’s juvenile record or proceedings. But I guess that pales in comparison to this guy’s arrogance, both in his statements to the victims while he was beating them up, and his bigoted statements to the newspaper.

– John H. Bryan, West Virginia Attorney

The job of defense is only easy when your client is the cop

The job of being a criminal defense attorney is a difficult one, and more so because you are constantly contradicting and questioning the testimony of police officers. Oftentimes it’s a losing battle, because most jurors are reluctant to believe that a cop would lie – or even exaggerate. But the tables turn in the rare instances when cops are charged with civil rights violations.

Bobby Frederick at the South Carolina Criminal Defense Blog had been covering the criminal trial of SC Trooper Steve Garren, who was basically caught red handed by his dash cam of swerving to hit a fleeing pedestrian suspect, all-the-while claiming “yeah, I hit him. I was trying to hit him.”

Despite this video evidence, replete with an audio admission, the jury found him not guilty. Now I have no idea what happened at the trial or in the jury deliberations, but the fact that this guy was a state trooper was the 800 pound gorilla in the courtroom. Certainly this would have been evidence beyond a reasonable doubt to a jury if we were talking about a civilian defendant. But jurors will give police officers a huge benefit of the doubt – whether it be with respect to weighing credibility against the defendant, or with respect to the rare instances where law enforcement officers are actually held to task for committing a crime.

These are one of the rare, rare situations where a jury will ever give a criminal defendant the benefit of doubt – including possibly acquitting him despite their belief that he was guilty. The jurors may have thought, yeah he did it, but the guy he hit deserved it, he shouldn’t have been fleeing.

– John H. Bryan, West Virginia Attorney

100K in West Virginia Taxpayer Money Granted to “Curb Smoking Among Gays”

Okay, this doesn’t have much to do with criminal law, except that the state owes criminal defense attorneys across the state a lot of money that they supposedly cannot pay without a long, long wait. But on the other hand, what’s a 100K here or a 100K there for artistic renderings of gay cigarettes?

Note: this commentary has nothing to do with sexual preference, so please don’t bother to write me angry emails. It has everything to do with government waste and incompetence. I am against any taxpayer money being spent uselessly – be it towards straight or gay causes, or any cause for that matter that government has no business being in.

There is so much wrong with this that I don’t know where to start. According an article in the Charleston Gazette today, the state Division of Tobacco Prevention has distributed $100,000 in grants to “Covenant House” and Bluefield State College to “curb smoking in the gay community.”

Apparently this is a problem worthy of your hard earned money being taken from you essentially at gun point, and given to “artists”, who apparently cannot survive in the free market, to create this:

Who else will really be getting the money? Advertisers, and of course those “artists” who I’m sure will be creating the ads, to convince gay people that they should not be smoking. Is this really necessary? Are they going to take a look at the above piece of “art” and all of a suddenly throw away their cigarettes and jump on a treadmill?

So why attempt to curb smoking only among gays? According to the article:

Tobacco prevention and gay health groups say gay people smoke at high rates because of stress caused by discrimination. Gays also are more likely to frequent places where smoking is prevalent, such as bars and private clubs.

What’s more, gay people have higher rates of alcohol and drug abuse, behaviors often associated with smoking, according to gay health organizations.

“The tobacco industry has targeted the gay population for years,” Crist said.

So let me get this straight…. We have bridges that need repair in West Virginia, highways that are falling apart, and it takes the state about a year to pay it’s court appointed attorneys. Heck, we can’t even afford 5 day workweeks anymore. But, we can afford a useless make-work campaign designed to curb smoking among gays?

Our state government is officially insane. Remember this the next time that you hear about West Virginia’s population declining. This is why you pay an inordinate amount of taxes in this state. You are worried about how you are going to pay for your heating oil this winter, or about whether you can continue to operate the family farm or business. But your elected and appointed government leaders are worried about pandering to anyone and everyone with an agenda – and they could care less because (a) they get more votes, and (b) it’s not their money.

If you look through the comments following the Gazette article, its clear what the proffered counter-argument is here: that this is a health crisis issue in the gay community and you are “homophobic” if you don’t agree to spend money on it, and that if our government does spend money on it, then it will save us money in the long-run in heath care savings. If the gay community recognizes this as such a health care crisis among their group, why don’t they just stop smoking?

And if anyone really believes that a taxpayer funded cartoon pack of pink cigarettes and the like will really stop one single person, whether straight or gay, from smoking, then I’ve got a bridge in the New River Gorge that I would like to sell you. It’s really nice.

– John H. Bryan, West Virginia Attorney

West Virginia Roads are Dangerous and Worthy of Speed Limit Enforcement

I posted to the West Virginia Car Accident Law Blog yesterday regarding a study that just came out yesterday:

There was a report just released from the federal government indicating that younger drivers are more likely to die on West Virginia roads than anywhere else in the country. According to an article on WSAZ.com, statistics show that West Virginia’s death rate among younger drivers was 70 percent higher than the national average. Thirty six West Virginians between the ages of 16 and 20 died in crashes in 2006.

The article notes that “experts say traffic fatalities are twice as high in rural areas where drivers are more likely to speed and less likely to wear seat belts.”

I think those are two factors involved, but not the only ones. A reporter called me today and asked me what I thought were the main reasons for this problem. I responded that I think that younger drivers are reckless drivers no matter what state you are in. But when you put them on windy, mountain roads with no enforcement of the speed limit, you are asking for disaster. And that is my theory at least, about why the young fatalities are so high on West Virginia roads. But certainly the advent of new cell phone technologies and their 24/7 usage by younger persons is playing a part as well.

This is an issue that I am passionate about. Growing up in Florida, where nearly all roads are straight, I always felt that the police, when giving tickets, were more interested in harassing people – or making money for local entities – than they were in “serving and protecting.” But here in West Virginia, I the situation is the opposite. Law enforcement can’t be bothered to pull people over for merely speeding. They are too busy showing up to domestic disturbances and what-not. But anyone who drives on these roads can tell you what it feels like to approach a blind curve in the road and see a maniac tractor trailer driver halfway into your lane and speeding. They do this because they absolutely do not fear speed limit enforcement.

Law enforcement are understaffed, but like I told this reporter, they are also under-motived in that their superiors have no incentive to require them to make traffic stops. Very, very little of the total amount paid for traffic tickets in West Virginia go to the political subdivision where the ticket is given. It literally is not worth it to the county or city.

Almost all of the troubles that cities and counties have in paying for law enforcement could be alleviated by ticketing speeding and reckless drivers consistently, and then funneling most of the money into the county or city operating budget. This could bring other problems, such as notorious speed-traps, but that is a sacrifice I would be willing to make in order to save lives.

And for the tractor trailer drivers and companies who selfishly speed through our communities: they should be made to pay big. And I mean big. If they are speeding on our roads here in West Virginia, we should figuratively filet them with a “ginzu” knife. The fines should be so high that they will never, ever forget to obey the speed limit in our state.

– John H. Bryan, West Virginia Attorney