Getting ready to leave today to argue before the U.S. Court of Appeals for the Fourth Circuit.
An article in the West Virginia Record commented on several West Virginia Supreme Court Justices, Justices Ketchum and Davis in particular, giving an attorney a “tough time” during oral arguments:
The examination of Attorney L. during oral arguments was so one-sided that Ketchum even suggested to attorney Thomas M., who represented Pullman and Structural, not say anything that would lose him the case.
And when Tiffany D., who was arguing for Ershigs, reminded the justices that the party harmed by the sanctions was AEP and not the law firms that handled the case, Ketchum responded, “You don’t think AEP has a nice malpractice suit against their lawyers?”
This brought back memories. I was once before the WVSC for oral arguments and my opponent was given a really “tough time”. After they finished, they told him to sit down, pointed at me, and told me to stand up, it was my turn. I looked at them and said, “your honors, I think I’ll just quit while I’m ahead.” One of the same Justices said “I think that’s a good idea”. So I basically just sat down.
I know that many people have been following this case, so here is an update. On Monday I was ordered by the U.S. Fourth Circuit Court of Appeals to respond to a Petition for Writ of Prohibition filed by the defendants in the Sawyer v. Asbury 1983 excessive force case. The new jury trial on damages is scheduled for next week. I was given until yesterday to respond. Unless the Fourth Circuit says otherwise we are having a trial on Tuesday. Here is our response:
(Yes I did this in two days, so please excuse any mistakes)
As explained by the Charleston Gazette this morning, new rules have been adopted for West Virginia appeals to the WV Supreme Court of Appeals, which will become effective in December of this year. This is a significant change for criminal defense in West Virginia. The Court will still be able to deny a criminal defendant’s appeal. However, from that point forward, the Court will have to give a reason for that denial.
Since 2004, it has been a concern of mine that persons convicted of sex crimes in West Virginia essentially will have no possibility of appeal. The problem is that the justices must campaign for election or reelection. In 2004 a justice lost his bid for reelection, mostly due to negative campaign advertising alleging that he freed a convicted sex offender (despite the fact that it was the correct decision legally – and despite the fact that there was obviously a majority consensus in that particular case since no justice can act alone). After that, what justice is going to want to reverse a conviction for any sex offense, regardless of what the correct legal decision is?
I’m not trying to protect child molesters. The fact is that “sex crimes” have turned into Salem witch hunts. The average person would be stunned at how many “sex crimes” there are. The small minority involve conduct which the average person would deem to be child molestation. The end result is that we have watered down the sex offender registry with individuals about whom people are generally not concerned. So when you actually have a child molester, it basically goes under the radar.
The average person would also be staggered at the volume of legislation and bureaucracy dealing with sex offender registration. It has taken over West Virginia’s criminal code, and is beginning to take over parole in West Virginia. Now, sex offenders will almost always qualify for “extended supervision” by WV parole officers. So if you are convicted of a sex offense, at the behest of the prosecutor, even after you serve your time you can be supervised (basically be on probation) for decades – in addition to already being required to register as a sex offender for life (the rules and intricacies of which would take about a week to explain). You can be forced to take polygraphs and wear an ankle bracelet.
We should be provided an accounting of how much taxpayer money is spent on the sex offender system. I bet it would be staggering. I would also like to know how many children it has saved from harm. Probably very few. Its like making schools “gun free” zones. It does nothing to accomplish its alleged purpose, and actually ends up doing more harm than good. Teachers or adult students cannot be armed to defend themselves and others. Likewise, parents will have no idea a real sex offender is in their neighborhood – because there are so damn many “sex offenders” that the truly dangerous ones get lost in the crowd.
Good people, who pose no threat to the public, can and have gotten caught up in this witch hunt. Politicians, nor judges, are willing to take a step back. This is a mob mentality. The “sex offender” brand rules – just like a witch. If you step into the way of one of these prosecutions, you are in support of child molesters – you are a witch, and you lose your seat, or lose your bench.
Of course, we don’t need career politicians anyways. Maybe judges, but not politicians. At least now there is a right to be told why a criminal appeal is being denied. Next, we need reform. Just like taxes should be cut, laws should be cut. Let’s stick to the basics. When we make everything a crime, we give corrupt or power hungry prosecutors the power to charge anyone for anything at anytime. Never a good idea. Some are just bad apples. The scary thing is, that bad prosecutors have a common trait: their will to win and avoid embarrassment is greater than their respect for justice. They will convict an innocent person to save face, or even to achieve personal retribution or revenge. And the ignorant electorate has no idea. They hear a radio ad touting how “tough on crime” the prosecutor is, and they vote for him. Elections are not won by promising to ease up on criminal prosecutions, or by promising leniency or mercy. Again, it’s a mob mentality. The WV Supreme Court should be completely insulated from the mob. Hopefully that will be a future reform.
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.
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.
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.
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.
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.
A great opinion recently came down from the US Supreme Court. The case is Arizona v. Gant. What law enforcement officers in West Virginia, and elsewhere love to do is this: they pull someone over for a traffic violation, or even an investigatory stop, and they arrest them for a traffic charge, or for some bogus “obstruction” type charge (i.e., he or she failed to put their hands on the steering wheel despite being ordered to do so). Basically these arrests are an outright lie and are merely meant to allow the officer to search the vehicle. And they do. All the time. If they don’t find anything incriminating, maybe they let the person go. But if they do, they take them to jail and collect the evidence.
Well now, according to the US Supreme Court, this is unreasonable and therefore unconstitutional. The original rationale for a search incident to a lawful arrest is officer safety. The Court reiterated that and confined this type of search to only that concern. It is now clear that such searches are not reasonable if the suspect is already handcuffed or otherwise detained in the patrol car. The Court held that “[p]olice may search a vehicle incident to a recent occupant’s arrest only if the arrestee is within reaching distance of the passenger compartment at the time of the search or if it is reasonable to believe that the vehicle contains evidence of the offense of arrest. When these justifications are absent, a search of the arrestee’s vehicle will be unreasonable unless police obtain a warrant or show that another exception to the warrant requirement applies.”
For the past 28 years, police academies across the country have basically taught that it was proper police procedure to search the vehicle at every arrest of a recent automobile occupant, regardless of whether there was any concern of officer safety. Now we will see how law enforcement agencies across the country can re-train their officers.
This could also affect a great number of pending cases. For instance, I have one appeal I am working on right now where this exact scenario occurred, and the conviction almost surely would not have occurred without the evidence seized during the “traffic stop arrest.” Maybe I will get the first West Virginia case based on Arizona v. Gant to the West Virginia Supreme Court of Appeals….
- John H. Bryan, West Virginia Attorney.
As was reported in the Register-Herald this morning, a 2nd degree murder conviction being appealed by myself and Tom White of Lewisburg was denied by the West Virginia Supreme Court of Appeals last week. The vote was 4-1 – Menis Ketchum, a Justice having criminal defense experience, having voted to hear to hear the appeal. One of the issues appealed was the admission of a “dying declaration,” which is an exception to the hearsay rule. Justice Ketchum noted during the hearing that there has been a nationwide trend questioning the dying declaration exception, such as has long been the case in Alabama – See Hutcherson v. State, and indeed apparently even in India. Exceptions the hearsay rule still have to hinge on the reliability of the statements. If the dying person had a motive to lie, then the reliability of the statement should be questioned and it possibly should not be admitted.
In Hutcherson, the Court of Appeals of Alabama noted that “[t]hough a dying declaration is not presumed involuntary as is an extrajudicial confession, yet it must be treated with a jaundiced eye. It is predicated on the assumption of death-bed freedom from vengefulness and mendacity. The validity of this assumption would seem difficult of demonstration. Hutcherson v. State, 40 Ala.App. 77, 108 So.2d 177 (1958).
The Alabama court cites a prior Alabama case which gives this warning:
“There are many reasons why dying declarations should be received and weighed with great caution. First, They are necessarily wanting in that greatest test of the credibility of oral testimony, cross-examination. Second, The jury are without the opportunity of observing the temper and manner of the declarant.Third, Such testimony is generally given by relatives and friends of the deceased, who had watched by his bed-side, and bias in his favor is to be expected.Fourth, All narrations of the other men’s sayings should be scrutinized with care, because what men say is so liable to be misunderstood. This is shown in the fact that when two or more witnesses, no matter how respectable, attempt to repeat a conversation that was heard by each, very marked differences will frequently be observed in their several narratives. Fifth, Many persons, even in serious conversation, assert as facts those things of which they have only strong convictions, but have no knowledge derived from the senses. Well may we, in the language of the judges and text-writers, say that such evidence is received from necessity, and to prevent the escape of offenders who commit the awful crime of murder. * * *”
Shell v. State, 88 Ala. 14, 7 So.2d 41.
Note: this is is no way represented as a comprehensive legal argument regarding dying declarations – only some off-the-beaten-path language that I encountered and felt was pertinent – probably only useful in attempts at encouraging a trial judge to second guess the reliability of a dying declaration sought to be admitted to a jury. There are obviously better appellate arguments grounded in law. This is not that.
Isn’t it frightening that you can be convicted of murder in West Virginia and not be able to appeal your case? We need either an appeal as of right for certain criminal cases, or an intermediate court of appeals. And we can afford it, we just need to cut out some of the entitlements that are handed out so generously in our state.
- John H. Bryan, West Virginia Attorney.
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