Two more thoughts of the day: 1) Without video proof, police misconduct didn’t occur; 2) Sex offender registration mania is out of control
It blows my mind that this is on video, but it is. A scumball cop in Ohio abused his authority and violated the civil rights of an innocent citizen. He basically threatened to execute the guy, etc. Of course the poor guy is then prosecuted for “failure to notify” that he had a concealed weapon permit and was carrying. I heard through the grapevine that in the criminal prosecution which ensued (of the victim of course – not the cop) the prosecutor offered to dismiss the charges if the victim/defendant signed a release of liability foreclosing any possibility of a lawsuit over civil rights violations. If this is true (and I have no proof that it is), the prosecutor should be prosecuted for attempting to cover up a crime. I just found this statement from the police chief in that jurisdiction:
I want to assure our citizens that the behavior, as demonstrated in this video, is wholly unacceptable and in complete contradiction to the professional standards we demand of our officers. As such, appropriate steps were placed in motion as dictated by our standards, policies and contractual obligations. Those steps included: The officer immediately being relieved of all duty. The incident has been referred to the Internal Affairs Bureau for what will be a complete and thorough investigation. As bad as the video indicates our officer’s actions were, there is a due process procedure to follow. That process is designed in the best interest of both our employees and the citizens at large. That process will be followed in this case as in all others. Anyone shown to be in violation of our rules and regulations will be help appropriately responsible as dictated by all the facts. ~Chief Dean McKimm
The 800 pound gorilla in the room is this: if the video did not exist, nobody would believe the victim. And it blows my mind that the video was recovered. By the way, if you watch the video, take note of the illegal search of the backseat of the car which happens almost immediately after the stop. This sort of garbage happens all the time. After the fact the cops will claim to have received consent to search the vehicle. There was no consent, and there was no probable cause to search.
Secondly, there is a story out today about 14 year old boys being required to register as sex offenders due to a high school prank. It’s time to tell the whining hippy women and the “new-castrati” that enough is enough with this sex offender garbage. Of course it has its place with real sex offenders. But this has gotten out of control. I’m tired of seeing this ruin the lives of good young people. The sex offender laws are too broad. Then once we label good people as “sex offenders”, it ruins their lives. Not only this, but it waters down the real purpose of having registered sex offenders. So what’s the point?
If you were wondering what the law is in West Virginia, it is basically this: if there is any conviction of an individual and the presiding judge makes a finding that the offense was “sexually motivated” in any way, that person then becomes a registered sex offender. It doesn’t have to be an actual sex offense charge.
The State Journal ran a story today entitled “Guilty Pleas Expected in Development Scam” announcing that a former United Bank Vice President and loan officer who we sued as a part of our Walnut Springs Mountain Reserve civil fraud case, “R. Leon Cooper” has agreed to plead guilty to federal crimes as part of a plea deal.
The conduct supporting the plea has to do with fraud which occurred in the development of the “Lamplighter” subdivision in Lewisburg, WV. The story also noted that:
As part of the guilty pleas, both Carter and Cooper agreed to cooperate with the U.S. Attorney’s office on further investigations. Both Carter and Cooper also will forfeit nearly $2 million in valued property.
Carter is scheduled to enter his guilty plea Jan. 6 in Beckley. Cooper’s plea has been scheduled for Jan. 13 in Beckley.
Cooper was the former Fayette Planning Commission president involved in the failed River Ridge development in Fayetteville.
That development crumbled when sewer plans for the development were prematurely approved so loans Cooper facilitated through United Bank could be approved for property purchasers, according to lawsuits filed concerning that development.
Cooper also has been named in a civil lawsuit filed in the failed Walnut Springs development in Monroe County.
The Monroe County lawsuit is pending.
There also was a story in the Charleston Gazette yesterday that United Bank paid $15,000,000.00 in fraud settlements in 2009 alone. And we wonder why the economy collapsed…. The Gazette also ran a story on Friday on the Cooper fraud. The banks have been running absolutely wild. We are still sorting out how many innocent U.S. citizens were harmed due to bank fraud in the mid to late 2000′s. It is a big deal for these two West Virginia publications to start reporting on United Bank’s dirty laundry. For those of you who don’t know, United Bank basically runs the state of West Virginia. It is the “state’s largest bank” and many, many people and institutions in West Virginia are afraid of it. But once the cat’s out of the bag, it’s out. I suspect we will read more soon.
Ok, here’s more: A Virginia businessman, Osama M. El-Atari, 31, pled guilty to bank fraud totaling $53,000,000 in fraudulent loans. Guess who else was involved? That’s right, United Bank. A United Bank Vice President and loan officer (same general position as Cooper), Sissaye Gezachew, 32, was arrested and pled guilty to bank fraud for his involvement with El-Atari. See Washington Post article and FBI press release. Banks do not exactly advertise these incidents, or even explain them, to their customers or shareholders. In fact, they don’t even let their mortgagees who have been victims of fraud know about the fraud. Rather, they pretend it never happened and demand their money. Then they foreclose and threaten to garnish wages. Of course you would still be safer with United Bank than dealing with United Bank of Africa.
In the Charleston Gazette this morning is an article on a federal lawsuit I filed yesterday on behalf of Brian Sawyer, replete with a video of his beating at the hands of a Wood County, WV deputy. This is an excessive force case which is currently the subject of an FBI investigation, as the article confirms.
This incident would have coasted under the radar if it were not for Sgt. Dave Westfall of the Wood County Sheriff’s Department, who blew the whistle on what happened, and saved the surveillance video of the beating, providing it to the FBI after his superior allegedly told him to not throw his fellow deputy “under the bus.” Westfall is a veteran of the U.S. Special Forces, with a distinguished career as a law enforcement officer. He is also a certified self defense instructor and use of force instructor. It goes to show that real men do not need to use their badge to beat people up. Real men use restraint and act with a clear head. Real men do what is right and would never cover up a civil rights violation just because he can.
Unfortunately, now Sgt. Westfall is defending himself against the Wood County Sheriff’s Department. He alleges that he was caught by his superiors showing this video to two FBI agents secretly at a Cracker Barrel restaurant, and now they are seeking to discipline him for unrelated allegations. And we wonder why other officers do not come forward to report misconduct . . . . Their choice is to have a long, quiet career with no bumps in the road by staying quiet, or to do what is right and face persecution.
Now we all need to stand behind Sgt. Westfall and keep him from getting thrown under the bus for having integrity.
This is a good lesson on what the proper role of the federal government is. I was watching the Maynard / Rahall debate last night, and there was a lot of discussion on the proper role of the federal government. There are a couple of things that we do need the federal government for: raising, maintaining, and operating a military; and stepping in to local situations where there is questionable accountability and integrity within state or local government. Thank God we live in a country where we can go to the FBI if we believe that there has been a coverup or conspiracy among law enforcement at the state or local level. Otherwise, what could we do?
Other Media Links for this case:
WTAP video (Note: during the video the anchor says something about Sawyer pleading guilty to assault on an officer, and at the exact time she says that you see Sawyer in the background being choked and held up off his feet. Obviously a vicious assault against that officer. Of course when he took the plea offer, he would have had no idea about the video, and without a video it’s like talking to a brick wall when you tell people you were beaten up. That’s the usual way things work. You get beaten up, and they charge you with assault. Then they give you a good deal on the jail sentence if you just plead to assaulting an officer.)
Statement released by Sheriff Jeff Sandy:
“On October 26th, 2010, a federal law suit was filed concerning alleged “excessive force” violations being committed by a former employee of the Wood County Sheriff’s Office. I assure the public that the Wood County Sheriff’s Office will continue to cooperate fully. As Sheriff of Wood County, I am responsible for all events that have occurred at the Wood County Sheriff’s Office since taking office. Under my watch the Sheriff’s office has not and will not tolerate illegal and unethical behavior by any employee that has taken the oath of office. The Wood County Sheriff’s Office has some great public servants, and this alleged incident should not reflect upon the entire organization. In ending, as Sheriff, I welcome any and all investigations by federal and state investigators, because after their investigation is completed it will show an unbiased detail of the events.”
Note: probably not coincidentally, I also have another case currently pending in federal court for a police beating which occurred in Parkersburg – Tim Mazza. At least this time officials have not been blaming me or tort reform….
The latest of Charleston Gazette reporter Gary Harki’s article critical of the WVSP is, to me anyways, an absolute bombshell – though not surprising in the least. Usually in the media you find brown-nosed reporting with regards to law enforcement, usually which talks about all the criminals who were arrested and/or charged. Harki has had the gusto to take on the West Virginia State Police in a big way.
The article deals with former-Trooper-now-Hinton-Police-Chief-Snavely, who I have discussed before. I wasn’t surprised when I found out that prosecutors were not charging Snavely with a crime. But I was surprised to see Harki’s article titled, “prosecutor not told ex-trooper falsified log“. Apparently the WVSP “investigation” into Snavely uncovered the fact that Snavely falsified his duty log for the evening when he was accused of his wrongdoing. However, they apparently chose to leave that tidbit out of the investigation report which went to the prosecutor. So Harki finds out about this from attorney Mike Clifford. Harki then goes to the prosecutor who made the call. And he is apparently pissed, and rightfully so – since it was published as being his decision not to prosecute Snavely. And of course, as usual, the WVSP is angry at the attorney – at Clifford! It was his fault – he shouldn’t have told Harki.
We have a culture of secrecy in the WVSP. Even though for the most part they are good and law abiding officers, the top brass have have made some decisions which undermine the public’s trust and confidence in their integrity. If you have a public official who has done something wrong, the public needs to know about it, and the public wants to know about it. If covered up, the public gets pissed. And the coverup is always worse than the crime. If they would just throw the bad officers under the bus where they belong, from the very beginning, the WVSP would come out smelling like a rose. It would reinforce our confidence in law enforcement.
Instead we have the awful situation where an innocent citizen can have his civil rights violated by some cowboy cop, and there’s nothing the person can do about it. What can they do? Call the police? Yeah right. Call the West Virginia State Police? Yeah right. Call the Governor? You just get a form letter in return. Call your congressman? You just get a form letter. Call the FBI? Do you have any idea how many complaints they probably get? Without something more to lend legitimacy to your complaint, there is about a 99% chance they will do nothing about it. The only thing you can do is get a civil lawyer on your side. Someone who has the guts to sue the WVSP, and to put up with the WVSP verbally accosting them in every newspaper article rather than commenting on their troopers’ misconduct.
In the news today – college kid in federal court on trial for hacking into Sarah Palin’s email account – facing 50 years in the federal penitentiary. Meanwhile, in West Virginia….
(can you see where this is going?)
Police officer, while on duty and using official resources, hacks into his ex-wife’s personal email account in the same exact way, downloads the emails and attempts to use them as evidence in a child custody proceeding, and then admits to doing so. Federal indictment? Facing 50 years in federal prison? Fired? Nope, none of the above.
Could a lawyer do that? No, he would get in big trouble. But it’s pretty darn hard to get in trouble if you are a county or city police officer in West Virginia, especially the Ohio County Sheriff’s Department (Wheeling, West Virginia).
Here myself and another lawyer, Thomas E. White, from Moundsville, West Virginia, have teamed up to help give justice to a former law enforcement spouse who alleges that she suffered, and continues to suffer, due to her ex-husband’s position as a police officer, and to attempt to do the county’s job (for them) of providing discipline and accountability to the Sheriff’s Department there.
It is often said that the definition of a profession is a group of persons who engage in the same occupation and police themselves. Physicians authorize and discipline their own. Lawyers authorize and discipline their own. The same goes for veterinarians, pharmacists, and so on. Cops do not police themselves. They do not proactively sort out the bad apples.
Case in point: former Montgomery, WV PD officer Matthew Leavitt. He successfully got his municipality sued multiple times and cost their insurance company six figure settlements. This could have been avoided years earlier if anyone in the law enforcement field would have given a damn. The Charleston Gazette published a story on his career. According to the Gazette, his resume includes the following:
November 2000-June 2001:
Leavitt is employed at South Central Regional Jail.
June 25, 2001:
Leavitt is arrested for driving under the influence.
December 2001-December 2004:
Leavitt is in the U.S. Army. While there, he is disciplined for drinking on duty.
Leavitt is employed as a Cedar Grove Police officer.
Leavitt’s certificate of completion of West Virginia State Police Basic Training is signed.
Leavitt is charged with battery by Charleston police for a bar fight.
Leavitt leaves the Cedar Grove department and is hired by the Madison Police Department.
July 13, 2006:
Leavitt goes to Elsie Keffer’s house in Madison at 7:45 a.m. and harasses her, her boyfriend and her daughter, according to Madison Police records subpoenaed in the Reynolds’ civil suit.
Leavitt resigns the Madison Police Department.
Leavitt is hired by the Smithers Police Department.
Nov. 6, 2006:
Leavitt is hired by the Mount Hope Police Department.
Nov. 24, 2006:
Leavitt leaves the Mount Hope department.
Nov. 29, 2006:
Leavitt is hired by the Gauley Bridge Police Department.
In his employee file, provided to the Gazette by Reynolds’ attorney Mike Clifford, there is a paper where Gauley Bridge Chief L.S. Whipkey and Mayor Damon Runyon kept notes from interviews with Leavitt’s references.
Madison Chief C. Burgess said, “he would love to have him back” and that he “gets along well with other people.” Smithers and Cedar Grove police chiefs also recommended Leavitt to Whipkey.
Hutchinson is hired by Smithers.
Leavitt is terminated by Gauley Bridge for sleeping on duty.
Leavitt is hired by Montgomery.
Hutchinson and Leavitt allegedly assault Roderick and Lakisha White after responding to an incident at their home, according to a lawsuit filed in Kanawha County Circuit Court.
“[Leavitt] threatened to ‘blow my fat black ass away,’” Lakisha White told the Gazette. “He said, ‘Bitch, I own you. I own the streets of Montgomery.’”
Hutchinson receives certificate of completion of West Virginia State Police Basic Training.
Leavitt leaves the Smithers Police Department. (During Leavitt’s tenure at Smithers, he worked for other departments concurrently, a common practice among small-town officers.)
Leavitt, recently hired by Cedar Grove, along with another Cedar Grove officer and a Kanawha County sheriff’s deputy, allegedly sexually assaults Patricia O’Scha on a hill across from Riverside High School, according to a suit filed by O’Scha in Kanawha County Circuit Court.
The three allegedly told her that if she would have sex with them, she wouldn’t have to go to jail. O’Scha said that while she was alone with Leavitt at the Montgomery police station, he implied she should have sex with him or give him oral sex, according to the complaint. Just when he stopped working for Cedar Grove is unclear.
Hutchinson resigns from Smithers and is hired in Montgomery.
Leavitt allegedly handcuffs Gregory Lee Payne and drives him to a wide spot in the road just before Interstate 64 near Cabin Creek. There he chokes and hits Payne, then leaves him by the side of the road, according to a lawsuit filed in Kanawha County Circuit Court.
Aug. 23, 2008:
Leavitt allegedly assaults 17-year-old Sherkiri Terrell. She alleges that after he pushed her head against a wall, he slammed her cell phone to the ground. As the two struggled, she says she put the phone down her pants. She alleges that when it began to ring, he put his hands down her pants to get the phone, according to Terrell.
Aug. 27, 2008:
Joey Carr knocks over a soda machine in Montgomery. Leavitt stops him, takes him to the police station and assaults him. When Leavitt pepper sprays him at close range, Carr says he tries to run away.
“He grabs me and throws me down, kicks me in the stomach and Maces me again,” Carr told the Gazette previously. “When he handcuffs me, he throws me against the car and told me to ‘Quit screaming like a little bitch.’”
Sept. 26, 2008:
Leavitt and Hutchinson assault Twan and Lauren Reynolds. Leavitt hits Twan over the head with a blackjack, kicks him in the back and sprays his eyes with pepper spray at close range.
He also uses a racial epithet and licks Lauren Reynolds on the neck during an interrogation, saying, “Little whore, you like it like that.” Their 4-year-old daughter witnesses much of the assault.
Sept. 27, 2008:
Montgomery officials suspend Leavitt and fire Hutchinson for the incident.
Sept. 29, 2008:
Montgomery police start an internal investigation into the Reynolds beating.
Oct. 1, 2008:
Hutchinson is employed as a Glasgow police officer.
Oct. 21, 2008:
Hutchinson’s last day as a Glasgow police officer.
Leavitt is terminated by Montgomery Police.
Hutchinson is employed by Chesapeake Police, where he is still an officer.
June 10, 2009:
Leavitt is indicted on federal civil rights violations for beating Twan Reynolds and falsely charging his wife, Lauren Reynolds, with a DUI.
July 6, 2009:
Leavitt pleads guilty to two misdemeanor civil rights violations in federal court. During the sentencing Oct. 22, Chief U.S. District Judge Joseph R. Goodwin said Leavitt remains defiant.
“He has stated that he only pleaded guilty because he feared that due to, quote, ‘idiots,’ unquote, on the jury, it was the, quote, ‘smarter thing to plead guilty,’ unquote,” Goodwin said. “He stated he wants the Court to know, quote, ‘I stand by my actions that day.’”
This generally is not the case with the State Police. But when the State Police fires somebody, or they resign due to misconduct, they usually go to some small municipality just as Leavitt did. Another case-in-point, Derrick Snavely. According to the Charleston Gazette, this is what was alleged:
In an interview with The Charleston Gazette in December 2008, the woman said Snavely told her she was driving in the middle of the road, then performed a field sobriety test on her. She asked him if she was going to get a DUI, and he told her he didn’t think she was that drunk.
Eventually they drove in separate cars to another spot, where Snavely, who is in his early 20s, began kissing and fondling her, she said. Then they drove in separate cars to her house, she said. “I went in survival mode,” she said at the time. “I couldn’t call anybody because he was the police.”
Snavely admitted to the sexual encounter, but claimed that there was no resistance. Though he was fired, he was not prosecuted. Prosecutors concluded that it was not a criminal offense for a trooper to have sex while on duty. They really stuck up for him.
Kanawha County prosecutors declined to bring charges against Snavely after reviewing the evidence, said Dan Holstein, assistant prosecutor for Kanawha County. The case was independently reviewed by two assistant prosecutors and they agreed that there was no prosecutable offense, he said. . . .
“To have a sex offense under those circumstances, you have to prove beyond a reasonable doubt that there was forcible compulsion. … And in this case there was no resistance at all, not even in word,” Holstein said. . . .
Prosecutors reviewed all the evidence, including a videotape inside the woman’s home that shows the officer there that night.
“If the Legislature wants to make it a crime to have sex with someone on duty, they can do that,” Holstein said. “But so far they haven’t. Just because he was a police officer and on duty doesn’t mean it was a crime.”
This should really piss you off. He pulled some girl over. Undisputed. She admits she was drunk. He ends up having sex with her at an apartment. Undisputed. (Undisputed only because it was caught on videotape). She is not charged with DUI. Undisputed. Prosecutors go out of their way to conclude that no crime was committed. Needless to say, her lawyer, Mike Clifford, disagrees:
“Any time a state trooper is in a squad car in uniform with a gun and a badge, the standing and negotiation powers for sex or anything else is severely restricted,” Clifford said.
Clifford, who has filed multiple lawsuits accusing police officers of wrongdoing in the past year, said he tells his clients that it’s best to follow police orders when they are stopped.
“Go along with whatever they do. We have the option in open court to figure it out,” he said.
So where does Snavely go after he resigns? Hinton, WV PD. A small municipality with a history of law enforcement issues. He is now Chief. I actually have met him, and he seemed like a nice guy when I met him. But the point is, there is a complete lack of sanity in the hiring of police officers by municipalities. These people are then given a gun and authority to point it at you. This helps put West Virginia last on the list of where people want to come visit – or start a business. Less officers is better than enough officers unqualified.
Officers who resign or are fired from counties also end up in these shady municipalities, such as Robert Alkire, Jr., about whom I have previously posted, who allegedly shot his gun off during an on-duty altercation with his girlfriend, and is now working at the Ronceverte, WV police department. The Charleston Gazette has also published articles on him.
This is what you get when you unionize government. This is what you get with big government: a complete lack of accountability, a complete lack of sanity. Just wait until it affects you, and then you will care. It happens.
- John H. Bryan, West Virginia Attorney.
Since my last post on this topic, much has happened in Pocahontas County, West Virginia. Yet another deputy of that county, was charged with a felony – actually five (5) felonies. When I first heard this, I knew it was just a matter of time before the charges were dismissed, since law enforcement officers are apparently above the law in that county – as we all learned when this deputy’s buddy was previously given a sweetheart plea deal in his felony criminal case which I detailed earlier.
Indeed, the Pocahontas Times reported that the charges have now been dismissed. Apparently the prosecuting attorney (and her assistant) were recused from remaining on the case (which is a convenient thread that runs through just about every case where law enforcement officers are charged criminally). Actually, they requested to be recused. As I have pointed out previously, why and the heck is there a conflict for a prosecutor when a cop breaks the law? In my opinion, this is step No. 1 for the cop-gets-off process. So, this prosecutor and her underling were recused. So the defense makes a motion to dismiss. Then there is a hearing with no prosecutor. So a motion to dismiss is heard with just the cop and his defense attorney in the room. Obviously the result was that the charges were dismissed. Apparently step No. 2 in the cop-gets-off process is to have no prosecutor show up at the trial.
According to Allegheny Mountain Radio, no prosecutor was at the hearing or assigned to the case due to “miscommunication.” Show me a case where Joe Blow got his five felonies dismissed due to “miscommunication” between prosecutors. It would never happen. But, conveniently, we have a cop in a rural county, where that exact thing just happens to take place. The stars and the planets align, hell freezes over, and the man walks free and clear.
The prosecutor seemed surprised and disappointed this happened. She is quoted at one point in the article:
Prosecuting Attorney Donna Price said Tuesday afternoon that because of that, Smith ordered the assistant prosecuting attorney out of the courtroom before he could explain the state’s position.
Nothing really surprises me about what happens in this particular county. But this sentence did catch my eye. It reads that “Prosecuting Attorney Donna Price said Tuesday afternoon that….”
I was in the Pocahontas County courthouse on Tuesday afternoon. I desperately needed to speak with the Prosecuting Attorney on behalf of a client. I had attempted to call her probably twenty times. I left message after message after message over the course of months. I never received a return call, and the receptionist at her office would consistently, and rudely, brush me off every time I urged her to have the prosecutor return my call (as if a taxpayer-funded public office employee had the right to be rude to lawyers, or anyone else, calling that office…). Mind you, I have dealt with many a prosecutor, in many different counties, and never have I had this problem before. But, in this instance, my client had not only a pending criminal case, but a pending civil case against the county and her office. I thought maybe that had something to do with it.
She had two arrest warrants out against the person, and I was there to turn him in and get a bond set – in part because we were there for a marathon session of depositions which would last two days. The only time I was able to speak with her previously was when I dropped into her office unannounced. At that time, she agreed that she would agree to a reasonable bond. Well, when I actually showed up that morning, which was expected, and which was Tuesday July 7, 2009 – the “Tuesday” referred to in the article – her office door was closed. Her assistant prosecutor was there, and said that she was not in the office that day, that she was out all day because of a death in her family.
So was she in the office/courthouse on Tuesday July 7, 2009 and avoiding me, or was she out? Maybe she was out part of the day, or maybe she spoke to the reporter over the phone…. I don’t know for sure, but I really didn’t appreciate being barred access to the prosecutor when this reporter had full access.
But there was more.
After telling me of his boss’ absence, the assistant prosecutor then said that he had spoken to her about my client, and that she wanted a “six figure bond.” This was for two misdemeanors mind you. It seemed obvious to me that this was retaliation for the civil case having been filed. A six-figure bond for two misdemeanors? Not only was this a true injustice, but it was an ambush. Both myself and my client were ambushed by this request for a “six figure bond” when I was previously assured that bond would not be a problem. Most other prosecutors would have given me a heads-up beforehand. The goal seemed obviously to put my client in jail as retaliation. Luckily, I was able to negotiate a slightly lower bond and my client was able to bond out.
But as the Cat in the Hat says, “that was not all, no that was not all.”
I had previously demanded two videos from the prosecutor. They were demanded by a prior attorney several times, and they were demanded by myself several times, including through a FOIA request, a motion to dismiss due to failure to produce evidence, and a civil lawsuit. The two videos, showing two arrests of my client, for which he was charged, were never turned over to me or my client. In fact, the prosecutor wouldn’t even acknowledge the existence of one of the videos, even up until the day of the depositions in the civil case (the Tuesday I was talking about).
Well guess who did have both of the videos….
That’s right. The civil defense attorney for the county, and the civil defense attorney for the State Police both had the videos. So here we have a criminal defendant charged almost two and a half years ago with committing crimes. Jury trials are scheduled with no videos being produced. The defendant fails to appear because the videos were not produced and he is afraid of getting railroaded. He is charged for failure to appear (twice). They still don’t produce the videos. They get a FOIA request. They finally admit to one of the videos, but still don’t produce. A motion to dismiss due to failure to produce evidence is filed. They still don’t produce. A civil lawsuit is filed. They still don’t produce. Another seven months pass while the civil case is being litigated. The prosecutor still doesn’t produce the videos to the defendant, who still has pending criminal charges.
Mind you, the prosecutor never even admitted to the existence of one of the videos to myself or my client, yet the civil defense attorneys were provided digital copies of both videos. We saw them for the first time during a videotaped deposition. You guessed it, compliments of the prosecutor, it was another ambush.
When I went back down to the prosecutor’s office, her door was still closed (this was the next morning however), and still apparently ”out of the office.” I confronted her assistant prosecutor who was standing in the reception area. I told him that I didn’t appreciate the suppression of this evidence from me while the same was provided to civil defense attorneys, unbeknownst to me. I told him I would get to the bottom of the matter, and that if I found out that anything unethical was committed, I would report the same to the state bar. Well that did it. He started yelling at me, accusing me of threatening him, and, suddenly, the boss prosecutor was back “in the office,” and opened the door to her office and walked out and began yelling at me as well, telling me that she didn’t have to do a damn thing basically. Following her lead, PCSD deputy Brad Totten then got in my face and joined in, shouting at me. All of them were shouting, in part, that they thought that I had received the videos, and that their previous secretary must have mistakenly failed to send me the videos.
Give me a break. If that is true, then give me her name and I’ll take her deposition. Show me the cover letter that should have accompanied the videos. Show me proof of postage. Show me any proof.
Res ipsa loquitur – the thing speaks for itself.
For the record, I would like to know whether Prosecutor Price was “out of the office” at approximately 9:30 a.m. on Tuesday July 7, 2009 – the same day and time that according to Alleghany Mountain Radio, she sent Assistant Prosecuting Attorney J.L. Clifton downstairs to inform her about what was going on in the aforesaid deputy’s prosecutor-less hearing in magistrate court, and also the same day that she was available to the Pocahontas Times reporter who interviewed her regarding the matter. And was there ever any attempt at sending me the videos? Maybe a special prosecutor should be appointed to investigate that.
Additionally, maybe someone should investigate a prosecutor’s office who uses the threat of continued criminal prosecution as leverage in civil litigation, which happened in this case. It wouldn’t be the first time Pocahontas County has had a prosecutor investigated.
There’s no real conclusion to the story, just the fact that I’m now all ‘riled up and even more willing to speak out against injustice occurring daily in places like Pocahontas County, West Virginia. On a lighter note, I was really impressed with Magistrate Kathy Beverage of that county. I wish more magistrates had her inherent sense of justice and courage.
Hopefully I’ll get to Part III sometime soon.
- John H. Bryan, West Virginia Attorney.
Not that I care what happens to former Senator Stevens in Alaska…. In fact I despise career politicians on both sides and believe that there should be term limits for all congressmen. But when a federal judge tossed a conviction and opened his own special prosecution of the prosecutors who “secured” Stevens’ conviction, I think it was a great moment for our country. I wish there could be more. Because the same conduct happens every day across the country at the state level with hardly a sigh from the presiding trial judges, much less an overturned conviction and a reverse prosecution.
The fact is that we give prosecutors way too much power. We have so many damned laws in West Virginia – and in every other state – that almost everything you do everyday is illegal. Everything. Want to take your grandson rabbit hunting? In all likelihood you will violate a dozen laws governing the transport of firearms and hunting regulation red-tape before you return home.
And if it’s not illegal, then all it takes to be prosecuted is for some lying cop to say that you did something illegal. In West Virginia, every allegedly illegal act carries a potential sentence of up to 1 year for most misdemeanors, and years and years for the felonies. Then, the prosecutors can charge you with a dozen counts for every allegedly illegal act, putting you in the position of spending the rest of your life in prison. They have the power to take away your freedom and your property. This power is unchecked. It’s not usually a problem when you have an honest and sensical prosecutor. But what happens when you have a devious or evil person as the prosecutor? You have a real problem – one which has occurred and has been documented across the country time after time.
Our only defense? Criminal defense attorneys and judges. And good luck getting a judge to toss a conviction for a non-former U.S. Senator.
- John H. Bryan, West Virginia Attorney.
[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.
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.
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
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