No pun intended….

One of the interesting things about having a blog is that you get to see exactly how many people visit, as well as what brought them there, including search engine searches.  Sometimes I look at these statistics, sometimes I don’t.  I just happened to look this morning, and apparently one person was brought here this morning by searching “West Virginia’s most notorious criminal,” and another was brought by searching “greatest West Virginia criminal defense attorneys.”  I’ll just let that speak for itself.

 - John H. Bryan, West Virginia Attorney.

Interesting Appeal Filed to the West Virginia Supreme Court of Appeals

About a month and a half ago, I mentioned that I was working on a petition for appeal that contained a factual scenario extremely similar to the Arizona v. Gant holding.  Well, it was filed early this month, and now my client has authorized me to post a copy of the filed petition.  I think it contains some interesting legal issues which have yet to be examined in West Virginia, one of which will be the use of Arizona v. Gant as it applies to “inventory” searches in West Virginia.

Additionally, this is an extremely odd case (factually).  And its one of those where the police and the prosecutor really went after the guy and he ended up getting the proverbial “book” thrown at him.  It illustrates the danger of jury trials, and the power of the prosecutor.  If they want you punished, there are enough laws out there that they can bend the facts around, that they can turn you into a felon pretty quickly – not to mention a registered sex offender.  And then they can charge you with multiple counts, basically restricted only by their whim.  The only way to stop them is to appeal.

Also, a H/T to Tom Rist for assisting with the case.

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The West Virginia Criminal Law Blog included on list of Favorite Law Blogs

My thanks to Glen Graham of the Oklahoma Criminal Defense Blog for including the West Virginia Criminal Law Blog on his list of favorite law-related blogs a little while back.  He includes us on the list of “The Top Trial Warriors and Top Civil Lawyers, Trial Consultants, Lawyers and Non-Lawyers, and the Best Criminal Defense Lawyers in America.”

He also includes a few of my favorites:

Mark Bennett – Houston Criminal Defense Attorney Blog

Texas Grit’s for Breakfast Blog

Jamie Spencer’s Austin Criminal Defense Blog

Brian Tannebaum – Miami Florida Criminal Defense Blog

Scott Greenfield – New York Criminal Defense Attorney

And there are others, but you will need to check out his post to see his full-list.

 - John H. Bryan, West Virginia Attorney.

Are civil defense attorneys in WV amicably-challenged?

Of course, as a civil plaintiff’s attorney/ criminal defense attorney, I have encountered some civil defense attorneys out there who were nice people.  But it seems that more and more I encounter those who are, to be kind, “amicably-challenged.”  I’m not talking about the small-town attorneys across West Virginia who somehow get along with each other perfectly well, I’m talking about the “big city” (Charleston, WV) attorneys who think they are “God’s Gift” to the practice of law.  It’s like they don’t realize that the real big-city attorneys in D.C. and elsewhere consider them the small-town yahoo attorneys.

When I was working for the DOJ in D.C., the running joke was about attorneys like this who practice in “state courts.”  They used to laughingly read their briefs and memoranda, commenting on the poor quality.  Of course, I don’t subscribe to that type of arrogance. And I understand that, now being in the real world of the “state courts,” results – and not style or elegance – are the only thing that matter.  And sometimes a somewhat sloppy and to-the-point style can be the most effective.

I have heard it said from some of the prominent West Virginia defense attorneys who represent government agencies or officials, that other similarly-situated defense attorneys in other states have commented to them that they represent public agencies and officials, and therefore they represent the people, and therefore, they should be as transparent as possible.  This was in regards to whether or not to voluntarily hand-over sought discovery materials in civil actions against state or local government.  But the response by the West Virginia defense attorneys was, “hell no, we’re not handing over anything that we don’t have to.”  And apparently – at least according to them – they haven’t.  Not in any case.

For instance, in a prior post, I detailed one such defense attorney’s tactics of withholding important information, which landed his client sanctions in the form of attorney’s fees.  This same attorney, just yesterday, purposely noticed a deposition of my client in a county/location, which we had previously-agreed would not be the county/location of the deposition.  My last communication to him was something to the effect of, “okay, we can take the deposition on such and such dates, but due to my schedule and my client’s travel requirements, it has to be either in location A, or B, but absolutely not C.”  He said, “okay.”  The next day, I get a notice of deposition, for location C.

Why do they engage in this behavior?  Is not the public entitled to anything and everything related to government?  Certainly there is no national security interest to be protected in cases such as these.  What are they hiding?  Alan Dershowitz said that “the defendant wants to hide the truth because he’s generally guilty.  The defense attorney’s job is to make sure the jury does not arrive at that truth.”  Of course, he was talking about criminal defense attorneys, but it still rings true.  Is it proper for a West Virginia law enforcement officer or agency to, after being sued for allegedly improper conduct, hide the facts of the alleged conduct?  Where in that scenario is the public being represented or protected?  

And doesn’t the public deserve representation that is open and amicable?  Can they not just call up their opponent and say, “hey, I would like to have the deposition in location C.  Let’s work it out.”  Or, why not say, “hey, is this date and time good for you for a hearing on such and such?”  Almost every other non-big-shot lawyer in West Virginia does this.  And most get along fine, fight it out, and end the day as friends.  But these big-shots make a game out of scheduling hearings for dates that they know their opponents are unavailable, and then they oppose any motion to continue.

For instance, several years ago, my son was a new-born, and had to go back to the hospital due to a high-fever.  Of course, I wanted to be with my wife and son in the hospital.  One of these jerks set a hearing, knowing I would be in the hospital.  When I found out, of course, I was enraged.  I called him and he refused to voluntarily move the hearing.  My office filed a motion on my behalf to continue.  He opposed it.  Of course, the judge granted the motion and continued the hearing.  Classy lawyer huh? 

And this behavior isn’t limited to those civil defense attorneys representing government agencies.  They are encountered frequently in personal injury litigation.  I guess you have to be of that mindset when your goal is to stop an injured victim from getting the compensation they deserve.  Part of their game is to be a real jerk to the client during their deposition.  They try to upset them, to rile them up, to make them so upset at having filed a claim against their client – the insurance company, they they regret it and lose the will to go on.  Is that the way to win?  I don’t believe so.

So how should mere mortals such as myself deal with these big-shots?  Maybe the best strategy is to do as Sun Tzu advised,and  ”pretend inferiority and encourage his arrogance.”

I should also insert a caveat here that, the real big-shot attorneys, the one’s who’s names can be found in large letters on the outside of fairly large – or actually large – buildings, do not fit this mold in my experience.  They have been among the nicest, and most respectful, attorneys I have encountered – both socially and as opponents.  True classy lawyers.  And I think it proves my point that their names ended up on those buildings – not through behavior as is discussed in this post – but rather through respectful behavior and intelligent lawyering.  Kind of like speaking softly and carrying a big stick.

And less I anger some personal injury defense attorneys out there who are truly good people and quality lawyers, I also hereby insert the caveat that there are a few out there.  I have had as opponents those who sympathize for my clients and who reasonably attempt to get their insurance company clients to offer reasonable compensation for injuries if it is deserved.  I have encountered those who are respectful and who are basically friendly.  But that is, at least in my opinion, the exception for the big-firm Charleston attorneys who venture out into the wilds of West Virginia dealing with us small-town yahoo local yokels.

 - John H. Bryan, West Virginia Attorney, and all-around nice guy.

WV Supreme Court Acquits Woman Convicted of Murder

In a 4-1 decision, authored by Justice Menis Ketchum – a Justice with criminal defense experience – which was filed yesterday, the West Virginia Supreme Court of Appeals actually acquitted a woman who had been convicted of murder in Cabell County, West Virginia.

A jury convicted Tanya D. Harden of first-degree murder in 2007, ignoring her argument that she acted in self-defense. She said Danuel Harden Jr., her husband of 11 years, told her that “nobody was going to walk out of the house that night,” including their two children.  She apparently shot her husband with a shotgun while he was sleeping on the couch.  

This was basically a “battered woman syndrome” self-defense case. 

The justices’ decision acquitted Harden of murder charges, and ordered her released from prison immediately. She had been serving a life sentence with a recommendation of mercy.

Syllabus Point 3 of the Opinion held that: 

Where a defendant has asserted a plea of self-defense, evidence showing 

that the decedent had previously abused or threatened the life of the defendant is relevant 

evidence of the defendant’s state of mind at the time deadly force was used.  In determining 

whether the circumstances formed a reasonable basis for the defendant to believe that he or 

she was at imminent risk of serious bodily injury or death at the hands of the decedent, the 

inquiry is two-fold. First, the defendant’s belief must be subjectively reasonable, which is 

to say that the defendant actually believed, based upon all the circumstances perceived by 

him or her at the time deadly force was used, that such force was necessary to prevent death 

or serious bodily injury. Second, the defendant’s belief must be objectively reasonable when 

considering all of the circumstances surrounding the defendant’s use of deadly force, which 

is to say that another person, similarly situated, could have reasonably formed the same 

belief. Our holding in Syllabus Point 6 of State v. McMillion, 104 W.Va. 1, 138 S.E. 732 

(1927), is expressly overruled. 

In Syllabus Point 4 of the Opinion, the Court held that:

Where it is determined that the defendant’s actions were not reasonably 

made in self-defense, evidence that the decedent had abused or threatened the life of the 

defendant is nonetheless relevant and may negate or tend to negate a necessary element of 

the offense(s) charged, such as malice or intent. 

In Syllabus Point 5 of the Opinion, the Court held that:    

An occupant who is, without provocation, attacked in his or her home, 

dwelling or place of temporary abode, by a co-occupant who also has a lawful right to be 

upon the premises, may invoke the law of self-defense and in such circumstances use deadly 

force, without retreating, where the occupant reasonably believes, and does believe, that he 

or she is at imminent risk of death or serious bodily injury.  In determining whether the 

circumstances formed a reasonable basis for the occupant to believe that he or she was at 

imminent risk of death or serious bodily injury at the hands of the co-occupant, the inquiry 

is two-fold. First, the occupant’s belief must be subjectively reasonable, which is to say that 

the occupant actually believed, based upon all the circumstances perceived by him or her at 

the time deadly force was used, that such force was necessary to prevent death or serious 

bodily injury. Second, the occupant’s belief must be objectively reasonable when 

considering all of the circumstances surrounding the occupant’s use of deadly force, which 

is to say that another person, similarly situated, could have reasonably formed the same  

belief.  Our decision in Syllabus Point 2, State v. Crawford, 66 W.Va. 114, 66 S.E. 110 

(1909), is expressly overruled. 

You know, sometimes prosecutors should come to the conclusion that the guy deserved it.  They should have given this woman a break.  She was protecting her children.  The police wouldn’t have stopped him from killing her, or the children.  That’s why we have guns for self defense.  It’s each of ours individuals responsibility to protect ourselves and our children.  The prosecutors were trying to victimize these children by turning them into orphans.  

As the Appellant/Defendant’s brief noted (caution: there are some gruesome photographs):

From Tanya Harden’s arrest to her sentencing, the State has never disputed an essential fact – that the decedent threatened to kill his wife and children and used his fists and shotgun to brutally beat his wife just before he died.  The injuries suffered by Tanya Harden, including facial fractures, were preserved on photographs taken the day of her arrest and made part of the record in this case, and were attested to by the State’s own witnesses.

This is our job as defense attorneys: to protect those of the Lord’s children who have fallen short of perfection from the wrath of those who believe they have attained it.  And by those, I am talking about prosecutors.  And Ms. Harding may have fallen short of perfection, but I can’t say that I wouldn’t have done the same thing given the circumstances.

 

- John H. Bryan, West Virginia Attorney

Shuttle returning to Florida

Here is a picture my father took of the shuttle returning to Cape Canaveral atop the 747.  It apparently was flying pretty low.  This location is still about 50 miles south of Cape Canaveral.