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.

United Bank VP we sued to plead guilty in federal court

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.

Federal lawsuit against Wood County Sheriff’s Department in the news

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?

UPDATE: (10/28/10)

Other Media Links for this case:

WTAP article

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.)

News and Sentinel

Daily Mail

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….

WVSP feeling the heat, and deservedly so.

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.

Law enforcement is [apparently] not a profession – Part 2

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.

View this document on Scribd

Law enforcement is [apparently] not a profession

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.

March 2005:

Leavitt is employed as a Cedar Grove Police officer.

January 2006:

Leavitt’s certificate of completion of West Virginia State Police Basic Training is signed.

April 2006:

Leavitt is charged with battery by Charleston police for a bar fight.

June 2006:

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.

August 2006:

Leavitt resigns the Madison Police Department.

October 2006:

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.

December 2006:

Hutchinson is hired by Smithers.

January 2007:

Leavitt is terminated by Gauley Bridge for sleeping on duty.

January 2007:

Leavitt is hired by Montgomery.

September 2007:

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.’”

December 2007:

Hutchinson receives certificate of completion of West Virginia State Police Basic Training.

February 2008:

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.)

March 2008:

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.

March 2008:

Hutchinson resigns from Smithers and is hired in Montgomery.

August 2008:

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.

April 2009:

Leavitt is terminated by Montgomery Police.

April 2009:

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.

Cops and Prosecutors in Southern West Virginia – Part Deux

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.

Finally the rest of the country finds out that prosecutors have too much power

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.

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

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

Cops and prosecutors in southern West Virginia get preferential treatment when they break the law – Part 1

Note: Since this post was posted I spoke with an elected prosecutor who requested that I insert the caveat that these prosecutors are the exception rather than the rule. I would agree with that perception since there are several prosecutors of whom I think highly. Of course, it is no surprise that there are cops and prosecutors out there who do bad things. None of us have yet attained perfection, we are all sinners. My main point herein is that despite the proven existence of some bad eggs, the system will almost-unconsciously protect their own. But these are relatively isolated incidents and are not necessarily indicative of West Virginia’s cops and prosectors statewide. But, as you will see, and as will be detailed in Part 2, these incidents weave a tangled web in several key jurisdictions. Also, I made one correction to the post. I previously incorrectly stated that the charge of wanton endangerment with a firearm is a misdemeanor, when it indeed is a felony charge. – JHB 10/2/08.

Note 2: I also spoke with a judge – uninvolved in any of these matters – who commented that these problems are due to ineffective prosecution.  It’s correct that it’s not the judge’s fault that a sweetheart deal is made, or that a person is never charged at all.  And some have attempted to construe my commentary as applying to the presiding judges.  That is not correct.  Judges do not make those decisions – usually. – JHB 12/15/08.

For some reason, newspapers don’t like to report scandal and corruption on behalf of cops and prosecutors in southern West Virginia. There are a couple of cases in this past year that I think are noteworthy that most people have no idea about.

There was an assistant prosecuting attorney in Pocahontas County named Anthony Tatano. A “Criminal Complaint” was filed in March of this year charging him with stealing trust fund proceeds belonging to minor clients of his resulting from a personal injury case. The criminal complaint can be found here. I have been unable to find even one article about this from Pocahontas County or any other newspaper in the state. He was charged, but never really arrested. You see, cops and prosecutors are not held to the same standard as the rest of us.

He was charged with a misdemeanor, but if you look up the statute he was charged with, West Virginia Code Section 61-3-20a, “Embezzlement by misuse of power of attorney or other fiduciary relationship,” the statute doesn’t say whether the penalty is a misdemeanor or felony. It just says, “guilty of the larceny thereof.” Okay, so we look to the basic larceny statute for the penalty. Well that just depends on the value of the goods stolen. If they are over $1,000, its a felony. If its under $1,000, its a misdemeanor.

Well this criminal complaint conveniently doesn’t mention how much money was stolen from the children, but given the fact that this was proceeds from a personal injury settlement that were supposed to be collecting interest until the children turned age 18, I can’t image the funds were less than a mere thousand dollars. In fact, I have yet to hear of any personal injury case that was settled for less than one thousand dollars.

So the cops were essentially forced to charge him – because the family was probably complaining and they wanted their money, and because you can’t argue with bank records – but they charged a misdemeanor and remained silent on the amount of funds that were embezzled.

Then, the record goes completely silent until yesterday. An article appeared in the Pocahontas Times, titled “Magistrate Court September 25, 2008.” The article was basically a summary of everything that happened in Magistrate Court in the past week. Buried at the bottom of the text was the following:

Anthony Tatano, of Marlinton, appeared in court on the 19th on a charge of obtaining money under false pretenses. He was released on $1000 bond. On Monday Tatano pled guilty to two previous charges both embezzlement, before Magistrate Miller. On each offense, he was sentenced to six months home confinement, to be served concurrently, fined $250, and assessed $159.53 in court costs.

There was no mention of him being an assistant prosecutor. Was he fired? Did he resign? The state bar website still indicates that his license is active – though I can’t imagine that disciplinary action would not be taken for embezzling client trust funds (especially children). Many lawyers get federal indictments and go to federal prison for this. But not in Pocahontas County. You get a sweetheart deal that nobody even knows about.

This is the standard for prosecutors in southern West Virginia. The law doesn’t apply to them. They are better than you. They know the cops. They are the law. Talk about double standard….

Then there is the case of former deputy Robert Alkire, II. Some of his scandal was actually reported in the Charleston Gazette – but believe it or not, wasn’t even mentioned i the Pocahontas Times (at least not on their website). However, even with the Charleston Gazette, the record goes completely silent.

Deputy Alkire, II, was the son of the Sheriff of Pocahontas County. So he goes to his significant other’s home in his patrol car and with his department-issued firearm. He gets into a “domestic dispute” and fires the pistol during the argument. The authorities show up. The Sheriff shows up.

Is he arrested and taken to the regional jail like Joe Blow would have been? No, of course not. He was taken to the hospital for “medical treatment.” Poor little Sheriff’s son threw a hissy fit and fired his gun, so he obviously had a medical problem that needed emergency treatment. But he was placed on paid administrative leave once the public found out what had happened. Then they decided that had to charge him with something, so they charged him with one count of wanton endangerment with a firearm – a felony – and set bail at a mere $3,000.

Go ahead and try to find another felony charge in the state where a gun was discharged and the defendant was only given a $3,000 bond.

A special prosecutor was appointed – Dan Dotson. Now Dan Dotson is an assistant prosecutor from Braxton County, and he likes to be a special prosecutor. He asked to be appointed to this case, and he also asked, and was appointed, to the Sawyers case in Greenbrier County.

But Dotson soon got the opportunity to reap what he had been sowing. As I detailed in a prior post, he was subsequently arrested in his own little domestic incident, which was reported by the Register-Herald here. But even from his jail cell, he was claiming that he was still “on the job” and that he was just “staying out of the office for a while until [he could] take care of other matters.” Yeah…sure.

Anyways, the Charleston Gazette publishes an article titled “Braxton prosecutor still on the job.” The article states that Dotson plans to go forward with both the Pocahontas case involving Alkire and the Greenbrier case involving Sawyers. But the article also says this:

Pocahontas County Sheriff’s Deputy Robert Alkire II pleaded guilty several weeks ago to misdemeanor brandishing a weapon, Dotson said. Alkire, son of Pocahontas Sheriff Robert Alkire, was arrested for a Nov. 30 incident in which he was charged with firing his department-issue pistol unsafely.

Well if Alkire has already pled guilty, then what is there to go forward with? And did you catch that? Alkire already pled guilty? To a misdemeanor? Where was the article about that? Good luck trying to find it. He got a sweetheart deal because he is a cop and because his father is the Sheriff. He got out of a felony firearms charge without it ever having been presented to the grand jury, then was allowed to quietly plead to a misdemeanor brandishing charge (thus allowing him to continue working as a cop and possessing a firearm). Then everything was completely buried by the authorities. Poor Joe Blow would have had the book thrown at him. He would have been charged with a felony gun crime and would have had his name plastered throughout the papers. But this guy gets a misdemeanor plea with essentially no penalty and no bad press. Like I said, the law does not apply to cops as it applies to you and I – they are the law.

So what happened to Alkire? Let me give you a hint. Say you have a cop who is pretty much forced out of a county where he scandalously shot his service pistol during a fight with his girlfriend while on duty. What would that cop do to be able to continue making a living. What law enforcement agency would actually hire him and give him another gun and badge? Here’s your hint: it’s somewhere in the Greenbrier Valley, and it is a city police department in a town that nobody wants to drive through because the cops are widely viewed as incompetent perpetrators of a small-town speed trap.

That’s right, our very own City of Ronceverte Police Department. If you don’t believe me, take a look at this. That is a link to the City of Ronceverte Police Department where he is listed as a deputy. They also note on their web page that he is equipped now with an assault rifle, ballistic armor and a Glock pistol. Oh great, just what the poor residents of that town need. All this for a town with only 1800 residents. And people wonder why nobody wants to drive through Ronceverte when you can go around it….

And whatever happened to Dan Dotson’s criminal charges? I wasn’t surprised to find out that a google search did not reveal any articles regarding the resolution of his charges. Like I said, he gets the benefit of a double standard here, just like Alkire and just like Tatano, and this most likely is all the information you will find on the resolution of his case. (I’m not a reporter, I’m a busy attorney, so yes, my investigation was limited to googling things).

And there is much, much more. So consider this Part 1.

- John H. Bryan, West Virginia Attorney

Update on Greenbrier County “Cattlegate” Cons

The Register-Herald published a rather lengthy and informative article about Greenbrier County’s “Cattlegate” scandal this morning. I have posted on this matter several times thus far, here, here, here, here and here, and I have noticed a lot of interest in this case from the sheer amount of search engine traffic directed to my site from searches about these individuals. I suppose that some people were relying on me to post an update to this matter since the sentencing was supposed to already have happened. But I really didn’t have any idea what was going on. But, I knew that Register-Herald reporter Christain Giggenbach was on top of it, so I need only wait until he published an article, which I knew he surely would – and this morning he did.

Apparently the sentencing was supposed to have taken place this morning, but it was continued, though there were no motions filed by either the prosecution or the defense. Well why was it continued? Apparently these angelic creatures have turned stool pigeons and are collaborating with authorities in investigating other individuals. But since all these canaries are proven liars, I’m not sure what their help is worth, and investigators better not give their words more than a micro-ounce of a grain of salt. The history books are full of tragedies which have occurred through the utilization of this type of snake-in-the-grass testimony. For example, see this post from Glen Graham at the Oklahoma Criminal Defense Blog.

The sentencings were continued to October 17 at 10:30 a.m. before U.S. District Court Judge Thomas E. Johnston in Beckley’s Federal Courthouse.

So what kind of sentences are they looking at? A lot of people have commented to me that this bunch is going to get away with probation, but that will not happen. They may however, get some type of home confinement, or mixed sentence. With respect to O’Brien, a presentencing memorandum filed by Assistant U.S. Attorney L. Anna Forbes recommended a prison sentence up to 10 years, but “indicated the defendant has provided more information about possible criminal conduct of others who may have filed claims in his multi-million dollar bankruptcy case.” Lastly, she writes to the Court that “a sentence within the advisory guildine range of 97 to 121 months of imprisonment is appropriate.” So fear not, even with his sleazy finger-pointing, he will be doing time.

With respect to Henthorn and *****, the AUSA recommended 6 to 12 months, while their lawyers are arguing for home confinement or a mixed-type of sentence – and they are apparently strenuously snitching as much as the feds will allow, in order to get what they want. Mind you, that all of these defendants already snitched on each other – one even reportedly wearing a wire in a conversation with the others.

I know that there are a lot of people out there, in Greenbrier County, Monroe County – and across the fruited plain – who want the Judge to stick it to them. The AUSA noted in her memorandum that:

“One of the victims is a single-mom with a couple children in college, another is a Virginia cattle farmer with a small farm who lost so much money and was so ashamed by his financial predicament that he could not, for a long time, bring himself to tell his wife about what the defendant had done,” Forbes wrote. “Many of the victims attempted to pursue claims in bankruptcy, a process that left some with unsatisfactory settlements, large legal fees and a sense, because of the perceived misconduct by other creditors, that they had not been treated fairly by the bankruptcy system.”

So this is a great group of guys. Real quality people, and I wish them luck on the 17th.

- John H. Bryan, West Virginia Attorney.

Debate Continues About Searching Lawyer’s Offices

A few days ago, I posted about an extremely troubling trend emerging whereby lawyer’s offices are being searched as part of a criminal investigation of their clients. Since then, Scott Greenfield at Simple Justice picked up the conversation with this post. He first noted mine and Bobby Frederick’s concerns, stating that:

My ilk will go on auto-pilot and pound the keyboard exclaiming how these searches, where the government comes in, seizes everything in sight and sorts it all out later when they can examine every file at its leisure. This blunderbuss approach has been condemned by South Caccalacca criminal defense lawyer Bobby Frederick and West Virginia criminal defense lawyer John Bryan, and their concerns are well-founded.

But he also argued that “when a lawyer gets too close to his clients, such that he becomes a party to their enterprise,” there is a legitimate reason to search for evidence. And in these situations, Greenfield argues that a mutually agreed upon “Special Master” should be appointed to conduct the first level of scrutiny. It seems to me that this is not a bad idea.

But it will never happen – not as long as you have prosecutors who are willing to go between judges to get their warrant, and not as long as you have gullible or malicious judges who grant the warrant without conferring with the first judge. And let’s not forget this is only legitimate in the scenarios Greenfield points out: where the lawyer has helped the client engage in wrongdoing. This absolutely should not apply in a Texas murder case where the prosecutor is merely fishing for evidence with no evidence of wrongdoing by the attorney.

Bobby Frederick, of the South Carolina Criminal Defense Blog, also noted that now “a federal judge in New Jersey is allowing prosecutors to review computer records seized from a criminal defense lawyer’s office, including the files of clients who were not targets of the search.”

Frederick also cited my game-leveling dream scenario where defense attorneys could do the same thing, and concluded that:

This practice, in any situation other than where there is probable cause that a defense attorney is himself engaging in criminal activity and the search is specific and focused so as not to violate attorney-client privilege, is an abuse of process.

And I think that is something we all agree on.

– John H. Bryan, West Virginia Attorney

Search Warrants for Attorneys’ Offices is Troubling Trend

Recently there have been a number of cases of search warrants being executed on Attorneys’ offices for the purpose of gathering evidence against a client/target of investigation. One such case was detailed by Bobby Frederick at the SC Criminal Law Blog here on August 23, where attorney George Argie’s office was raided by the feds seeking information/evidence on one of his clients. Frederick correctly notes that the appropriate method of obtaining information from an attorney’s files is through subpoena, in which case the attorney gets a chance to raise the attorney-client privilege before a judge.

On July 31, Frederick posted about the search warrant that was issued in Frisco Texas on attorney Keith Gore’s office, where State officials were seeking items and letters written from his client to his client’s wife. Thankfully, criminal defense lawyers in Texas came out in numbers in opposition to this Gestapo-like tactic.

Frederick recently added an update to that case, citing Grits and Tex Parte Blog, noting that the judge who signed that search warrant has now been recused from hearing the capitol murder case.

It is sickening to see that there are prosecutors out there who would go between different judges to get an illegal search warrant of an attorney’s office. If that is legal, then I would like to see a mechanism put in place whereby the lawyers of criminal defendants can obtain their own search warrants to be executed on prosecutor’s office. Say, for instance, that you know a certain prosecutor has a video tape that would exculpate your client. He refuses to hand it over, or to even acknowledge it. You could get a search warrant and have your private investigator execute the warrant and look for the tape. Yeah right. That’ll be the day. The sad fact is, that prosecutors are perfectly willing and able to abuse their power and not only will many judges not stop them, some of them apparently will help. I’m just glad I don’t practice in Collin County Texas.

– John H. Bryan, West Virginia Attorney.

Another Starbucks Stickup?

As I detailed in a previous post, Starbucks has the bad luck of getting shaken-down by crooked cops who enjoy the expensive drinks. Unbelievably, it has happened yet again, this time in Chicago. A Chicago police officer has been suspended and ordered into counseling after she was found guilty of demanding free coffee from six different stores on the North Side of Chicago.

Thanks to Scott Greenfield for finding this story.

You can read the full article here.

– John H. Bryan, West Virginia Attorney.

Is it a crime for a child to take a photo of a cop handcuffing her father?

Houston Criminal Defense Lawyer, Mark Bennett, posted yesterday regarding this story from Johnson County Tennessee, where Sheriff’s Deputies have been arresting people and confiscating iphones after pictures are taken of the cops in public.

This reminds me of a West Virginia case I am dealing with right now where a man videotaped the police shooting tear-gas grenades into his home. The police then broke down the door, shot the man with a taser, and attacked the man with their k-9. Then the guy was dragged off and thrown in jail. Guess what the charge was? Murder? Kidnapping? No, he was alleged to have made a harassing phone call. Guess what happened to the video and the video camera? The cops seized it with the consent of the prosecuting attorney – and it has yet to appear or to be provided to the defense. The problem is, that the 911 logs prove that the officers found it, and called the prosecutor requesting permission to seize it. Do you think they could be holding out until after the statute of limitations runs on a civil lawsuit? Or do you think they “misplaced” it somewhere in the evidence room?

So for those of you who think that law enforcement corruption in West Virginia is a conspiracy theory, please see the above paragraph. It exists. If any State or Federal investigators are at all interested in this case, please feel free to contact me and I will provide you with all of the particulars. But I won’t hold my breath with respect to the State, since they would be the ones getting sued. And I suspect the feds are too busy to worry about West Virginia. Like they say, “if you investigate one case, everyone else will want their case investigated as well…,” and that could take a while.

– John H. Bryan, West Virginia Attorney

West Virginia Doctors in Bed With Pharmaceutical Firms

There was an editorial featured back in the July 9, 2008 issue of the Charleston Gazette, entitled “Payola,” which reported the staggering fact that 111 pharmaceutical firms were forced to disclose that they “showered” 14,933 “gifts, grants or payments” on West Virginia physicians during the last half of 2007 – with some “payola” exceeding $50,000. In other words, many, many, doctors in West Virginia are being paid by the drug companies to prescribe high-priced brands of prescription drugs to their patients – without regard to the patients’ health and financial situation. The kicker is that the patient has no idea that their doctor is doing this – nobody except for the drug companies and the state board of medicine does.

This was the first disclosure of this type revealed under new West Virginia state reporting rules. However, the catch is that the state board of medicine has made the decision to hide the names of these doctors. The Gazette’s editorial board was arguing that these names should be made public. And I agree. However, “state medical groups” complained, leading to the state board’s refusal to release the names.

And the lawyers get a bad rap in West Virginia? This article was forwarded to me by my father, who is a physician, and who was formerly President of the Florida Medical Association – though I didn’t ask him his opinion about it. I can’t imagine a doctor taking cash and gifts from these pharmaceutical firms to the impediment of his or her patients, much less openly arguing to the state that names should not be released. It sounds to me like the state medical association needs some new leadership – not to mention some common sense. Whatever happened to the hippocratic oath?

This has happened in Florida as well. Awhile back, a doctor was arrested in a nightclub while wearing a superman costume and belligerently harassing women with a sub (sandwich) in the lower portion of his costume. As it turned out, this doctor, among others, were in the process of being wined-and-dined by pharmaceutical firms (in exchange for them prescribing their drugs to patients).

While all of this is going on, we, as consumers, are being perpetually blitzed by pharmaceutical commercials. People forget, or fail to realize, that even 5 years ago there practically was zero direct advertising to consumers by pharmaceutical firms. I think that any ethical doctor, who is taking their oath sincerely, will agree that this is not in the best interests of patient health.

The point is, that this is one of the reasons why people go outside the state of West Virginia for serious health care needs. It’s not the lawyers – it’s the doctors. I support doctors as much as anybody, but there are bad one’s and good one’s, and it seems that some bad one’s are currently in charge. That needs to change. There absolutely is no good reason for the state to withhold the names of doctors who accept bribes from pharmaceutical companies.

– John H. Bryan, West Virginia Attorney.

Police Officers and Domestic Battery in West Virginia

From the Charleston Gazette this morning, there is an article about a Dunbar, West Virginia, police officer – George Ike Radar – who was charged with domestic battery for slapping his wife 20 times and pointing his finger into her chest.

Bravo to State Trooper E.B. McClung for arresting this jerk. But shame on the magistrate for letting him out on a $1,000 recognizance bond, which in my opinion is preferential treatment based on his status as a police officer.

The Dunbar police chief was quoted in the article as saying “everyone is innocent until proven guilty, and we need to get to the facts.” Since when do cops believe in the presumption of innocence? When one of them are charged themselves, that’s when…

Statistics (and personal observation) show that the wives of many law enforcement officers are the most battered and abused women in this country. Cops protect their own, and they know how to manipulate and abuse the system.

In fact, I was in court yesterday representing the wife of a law enforcement officer who, in preparation for filing a divorce, had his buddy law enforcement officer come over and arrest his wife for touching him in the chest. And you can be sure that she wasn’t given a $1,000 personal recognizance bond (which means they do not actually have to come up with any money). No, she was given a $2,500 cash bond, which means that she had to come up with cash or go to jail. And guess what? She was not allowed to retrieve any money or belongings from home, because (again, in preparation for his filing divorce) he immediately filed a domestic violence petition at the same time, which means that a protective order is placed into effect, and she cannot go home or see her kids.

You better believe that many cops actually are above the law, and they will not hesitate to lie or manufacture evidence to have their buddies arrest you. Then, guess what? The magistrates are also buddies with the cops, so you get a high cash bond and general unfairness in the courtroom. Then the prosecutors are also buddies with the cops and would rather put your case in front of the jury instead of pissing off the cops by dismissing the case.

Yesterday, the assistant prosecutor who appeared offered to dismiss the criminal charge if my client withdrew several motions and a hearing date in the former-couple’s divorce case! Is that not disgusting? Is that not a gross abuse of power? Is that not a violation of human rights?

When I called a spade a spade and told the assistant prosecutor that she should be ashamed of what she was doing, she said “how dare you… I have never… I have never… (blah, blah, blah).” That is actually the second time that a female prosecutor has said that to me. The first time it was said I probably deserved it, but not this time. I guess they take themselves a little more seriously than the male prosecutors. Or maybe they just refuse to sympathize with the female victims of their law enforcement buddies.

Can a cop in West Virginia really have his wife arrested and use the prosecutor to negotiate a better divorce settlement for him? Absolutely.

You can read the full article about the Dunbar officer here.

– John H. Bryan, West Virginia Attorney.

More Corrupt Public Officials in WV…

This is another one of those “only in West Virginia” news items…

From the Charleston Daily Mail today:

Nicholas County emergency services director, Alfonso J. Derito, Jr., of Richwood, was charged with using county money to pay for hotel rooms for sexual liaisons with a female coworker, and apparently car repairs in order to more efficiently provide transportation to and from said hotel, as well as male sexual performance products, also to assist with said liaisons.

There is an affirmative defense though: The job-description did not adequately define “emergency services,” and Mr. Derito was, in his mind, providing an emergency service to his co-worker. Furthermore, the county provided him a county credit card to assist with all matters involving his rendering of emergency services, including enhancing job performance, providing more efficient transportation, and providing a more comfortable work environment.

According to the article, “Both admitted to going to the hotel on at least three occasions to sit and talk.” What more can I say?

You can read the full article here.

– John H. Bryan, West Virginia Attorney.

Greenbrier County “Cattlegate” Sentencing This Month

I have been asked many times recently what has happened with this case. Well, nothing has really happened since the sentencing has not yet taken place. The sentencing for these crooks will take place on June 30, 2008 before U.S. District Judge Thomas E. Johnston. There are also several civil cases currently pending in this matter, which undoubtedly will be detailed in the future.

You can read my previous post here.

– John H. Bryan, West Virginia Attorney.

Police Chief Has Wife Arrested By Buddy Law Enforcement Officer

This is a story that I will detail in a later post if need be, but it rises to the situation where the public should be informed of this massive abuse of authority.

A southern West Virginia Chief of Police, who is a big guy and also a military veteran, had his little wife arrested by a buddy law enforcement officer for “domestic assault,” taken into physical custody, after which she was able to bond out with a $5,000 cash bond. For those of you who don’t know, $5,000 is the average bond for felonies in southern West Virginia.

This police chief then filed for divorce and refused to drop the frivolous criminal charge against her unless she agreed to his terms for the divorce. This story is continuing and may be updated based on future actions taken by the law enforcement officer.

– John H. Bryan, West Virginia Attorney.

Cops Lie on the Stand? – Yes, Even in West Virginia…

From his Blog, Simple Justice, by New York criminal defense attorney Scott Greenfield posted about instances of federal judges in New York who made actual findings that certain cops had committed perjury before them.

Instead of publicly reprimanding them, the judges seemed more concerned with preventing damage to their careers. As Mr. Greenfield points out, “welcome to the real world of criminal law.” But why would cops risk losing their job and their pension to lock up any individual criminal? Mr. Greenfield replies, “tell it to all the people that cop’s put away before. Tell it to all the judges who defaulted into finding the cop credible, because he’s a cop, or the juries who bought into the prosecutor’s argument that “there’s no reason why the cop would lie…” There’s a very good reason; that’s just what they do. It’s their job. The courts are a big joke, and they say the magic words that put the bad guys in jail. No big deal, just another day’s work.”

Mr. Greenfield posits that “if there were ramifications for getting caught lying, such as jeopardizing a cop’s career (or more importantly, his pension), they would stop. No perp is worth losing a pension. But cops testily with impunity, and everyone in the system, except the criminal defense lawyer, is there to protect that cop from the consequences of committing the crime of perjury.”

And yes, it is no different in West Virginia.

Read the post here.

– John H. Bryan, West Virginia Attorney.

Was a Crime Committed in the WVU Bresch Scandal?

From West Virginia Metro News website:

Regarding the recent controversy regarding the governor’s daughter and WVU, was a crime committed when the Bresch transcript was altered? Attorney Tom Payton with the Payton Law Firm, analyzed that very question. His take on the facts are that:

1) In at least one course that she did not actually complete, she was given a grade that “was simply pulled from thin air.”

2) The grade modification forms bear only the signature of Dean Sears and “[a]ppropriate faculty and division chairs were neither consulted nor asked to sign these forms.”

3) “[O]ver Dean Sears’ signatures rather than the requisite course instructors’ and department chair’s signatures (as required by WVU standard operating procedures), grade modification forms were prepared and filed to add to her transcript credit for (redacted) hours of (redacted) that the principals all knew that she had not taken.”

4) The amended transcript now reflects her completion of some courses that she did not in fact complete, and reflects a number of grades that she did not in fact earn.

He points to the pertinent criminal statute which could apply as West Virginia Code § 61-5-22, which provides that:

If any clerk of a court, or other public officer, fraudulently make a false entry, or erase, alter or destroy any record in his keeping and belonging to his office, … he shall be guilty of a misdemeanor, and, upon conviction, shall be confined in jail not more than one year and be fined not exceeding one thousand dollars; and, in addition thereto, he shall forfeit his office and be forever incapable of holding any office of honor, trust or profit in this State.

So as he sees it, given that Dean Sears signed the document, if he is a “public officer,” then the statute may apply to him. However, his analysis of the case law reveals that the statute probably would not apply to Dean Sears, and that the ultimate punishment for his in this matter is likely resignation. He does note though, that there is enough authority here to form an investigation, subpoenas, grand juries, etc.

Read the entire article here.

– John H. Bryan, West Virginia Attorney.

Braxton County Magistrate Convicted After Jury Trial

From the Charleston Gazette:

A jury found a Braxton County magistrate who is up for re-election next week guilty of attempted retaliation against a state witness Wednesday.

Prosecutors charged Carolyn Cruickshanks with conspiring to retaliate against Philip Dailey, who testified against her son, Jordan Grubb, in a drug case.

Cruickshanks reportedly delivered a copy of Philip Dailey’s plea agreement and a transcript of his plea hearing to the jail, where Grubb hoped other inmates would punish Dailey for being a snitch.

It always amazes me that these small-town political conspiracies involving corrupt public officials actually take place in West Virginia. Then, the corrupt official still runs for office as they are on trial…. Unbelievable.

Read the full two-page article here.

– John H. Bryan, West Virginia Attorney.