Proposed West Virginia DUI legislation before Judiciary Committee

Today the Senate Judiciary Committee of the West Virginia Legislature is hearing evidence on proposed legislation that would reign in the WV Division of Motor Vehicles and their rampant disregard for the due process of rights of those accused of DUI in West Virginia.  The Charleston Gazette had an article this morning on the hearings.  In West Virginia, DUI charges take two different routes: a criminal action against the defendant personally, and then a civil action against the accused’ driver’s license.  In these civil hearings, there is a notorious lack of fairness and due process rights accorded to the driver.  The proposed legislation attempts to create more fairness in the process.  Though extremely late notice was given regarding today’s hearing, several criminal defense attorneys from around the state who defend DUI’s in West Virginia, have been invited to speak to the committee.  Let’s wish them luck and encourage the Legislature to enact this legislation.  

We should always err on the side of freedom and liberty – and never on the side of tyranny.  Besides, less government is always better….

 - John H. Bryan, West Virginia Attorney.

Back when men were men…

There was a moving article in the Register-Herald this morning about the passing of Raleigh County attorney William H. File, Jr.   Though I did not know him, I can’t help but admire the life that this man led.

Aside from a four-year stint during which he served the United States during World War II, File had served the citizens of southern West Virginia since 1937 as a member of File, Payne, Scherer and File, a firm started by his uncle Ashton File in 1902.

File’s time in the Navy was anything but uneventful, as he witnessed first-hand the invasions of Normandy and Sicily and, shortly after the invasion of Okinawa, was involved in a kamikaze attack off the coast.

During the attack, the ship of which he was the commanding officer served as a rescue boat of sorts for the crew of the larger USS Callaghan, which exploded and sank after it was struck by a kamikaze.

For his service, File received a Legion of Merit as well as a Silver Star. 

As I noted a few days ago, many in our country are doing their best to make sure that we churn out a bunch of sissies, who can’t even be in the presence of a wooden mock gun – much less defend the world against a brutal and evil empire – as this man did.  And then he returned to America and continued to practice law as if nothing had ever happened.  People of that generation were passionate about everything they did – from defending the country to practicing law.  To be enthusiastic about the practice of law until your 90’s is truly remarkable and is probably not something we will see very often in the future.

How many modern day lawyers would have so many people come forward at their death and extoll their virtues and their life?  Nowadays it’s all about money. Most people would cut your throat if they thought they could make a buck – especially lawyers.  Incivility is the rule, and arrogance and ego reigns supreme. Everyday members of our greatest generation are disappearing, and leaving with them are the final remnants of an era when men were men….

DOJ investigations of pattern or practice police misconduct resume (and shift course)

You might have noticed in the news today, as per CNSNews.com, that the DOJ has commenced an investigation of Arizona Sheriff Joe Arpaio – a man known for the strict enforcement of laws – and who is hated by the political left.  The article doesn’t say so, but his Sheriff’s Department is being investigated by the Special Litigation Section of the Civil Rights Division of the DOJ – a place I once worked.

It’s probably not a coincidence that this investigation comes on the heels of the inauguration of President Obama.  Either every career liberal in the DOJ has finally been given a green light to conduct their dream investigations, or grateful federal employees are scrambling to secure their jobs in light of the sudden shift in political leaning in the executive branch.

The Special Litigation Section is responsible for pattern or practice police misconduct investigations (among other things) – which results only in civil – not criminal – litigation.  Individual incidents could be prosecuted criminally by the Criminal Section of the Civil Rights Division.  

You will notice from the few and far between police misconduct investigations in the past 8 years, that they were not high on the Bush Administrations’ priority list – except to assist law enforcement agencies throughout the country in evading civil 1983 lawsuits.  For instance, see this letter to the Austin Police Department from the SLS.  By the way, this letter, and others that the DOJ provides the public, contains some great stuff for plaintiff’s attorneys, or anyone else who wants to learn more about proper “use of force” and “supervisory oversight” and other policies and procedures for police departments – at least according to the DOJ.

Nevertheless, the SLS has not yet even listed the Arpaio investigation in it’s website.  And until then, the public will not know what the specific allegations are.

 - John H. Bryan, West Virginia Attorney.

The “Kramer Rule” to affect West Virginia jury trials?

There was a story that I saw yesterday in the Register-Herald titled “Berkeley delegate wants judges’ donations disclosed in trials.”  Apparently, as per a bill introduced by Delegate Jonathan Miller, “[b]efore the first shred of evidence is put before a jury, members would know how much — if anything — opposing attorneys dumped into the presiding judge’s campaign chest.”

What I want to get is disclosing contributions to sitting judges from attorneys, first and foremost,” Miller, R-Berkeley, said Monday. “They are very involved in these lower races, circuit judges and family court. And I want disclosure to be compelled.”

Miller is labeling his proposal the “Jim Kramer Rule,” named after the investment guru, who, under Securities Exchange Commission rules, must disclose his personal holdings before pitching any stock.

The proposed legislation purportedly would not apply to criminal cases – not that it would be constitutional anyways….  This legislation begs the question: what in the heck is the point of doing this?  The reason that we have a jury in civil trials in West Virginia, is to decide contested issues of fact.  Of course the lawyers always believe that the trial judge favors and/or helps one side or the other somewhat during the trial.  But from the point of view of the jury, the judge is supposed to be neutral, and is only assisting them in doing their job.  In fact, the judge will instruct them not to try and speculate as to what he thinks about the case.  To instruct the jury from the beginning on which lawyer contributed campaign donations would confuse the jury from the start, and would possibly cause prejudice to an innocent party.  The lawyer is only representing the client.  Now if the client has some sort of improper connection with the judge, that could be different, in which case there already exists a procedure for the recusal of a judge if there exists a conflict.

Regardless, there’s no way this legislation, if passed, would get through the West Virginia Supreme Court of Appeals – all of whom are judges who arrived where they are, in part, through campaign contributions.

 - John H. Bryan, West Virginia Attorney.

When the judge starts prosecuting you, you know you have a problem….

There is a story in the Charleston Daily Mail today titled, “Judge refuses to accept guilty plea from ex-firefighter.”  Apparently the defendant was charged with second degree arson for the destruction of a boat dock.  According to the assistant prosecutor, it may have been an accident – albeit a reckless one.  But recklessness or negligence, doesn’t qualify as “willful or malicious” if there was no intent to set a fire or burn an object – thus giving the prosecutor good reason to plead the case to a destruction of property – a misdemeanor.

But apparently the judge wasn’t having it, and refused to accept the plea.  Something that I have noticed in arson cases: the judges’ take them very seriously. When buildings or objects are getting burned in their districts, people pay attention and so do the judges.  The judge doesn’t want to be the one who let the defendant out on probation only to have something else burn down.

And being that there is no misdemeanor arson charge, the only lesser-included available is destruction of property – which carries a maximum of one year in jail. Oftentimes, an arson defendant already will have served a considerable amount of time in jail because the bond was most likely set extremely high – or else they have been on home incarceration.  The result is that the person will not do much time – and hence, the judge doesn’t want to accept the plea.

But can the judge do that?  Yes, if he finds there is no factual basis for the plea.  But, is there anything stopping the prosecutor from dismissing the charge and recharging destruction of property?  Probably not – unless the judge is going to try the case, which of course he can’t do.  In any event, the case would have to be dismissed eventually due to lack of speedy trial.

 - John H. Bryan, West Virginia Attorney.