Interesting Appeal Filed to the West Virginia Supreme Court of Appeals

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

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

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

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WV Supreme Court Acquits Woman Convicted of Murder

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

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

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

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

Syllabus Point 3 of the Opinion held that: 

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

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

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

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

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

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

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

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

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

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

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

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

(1927), is expressly overruled. 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(1909), is expressly overruled. 

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

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

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

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

 

- John H. Bryan, West Virginia Attorney

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

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

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

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

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

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

 - John H. Bryan, West Virginia Attorney.

10 Things Never To Put In Email

Yesterday Roger Matus posted the 10 Things Never To Put In Email, at his Death By Email blog.  Here they are:

1. “I could get into trouble for telling you this, but…”
2. “Delete this email immediately.”
3. “I really shouldn’t put this in writing.”
4. “Don’t tell So-and-So.” Or, “Don’t send this to So-and-So.”
5. “She/He/They will never find out.”
6. “We’re going to do this differently than normal.”
7. “I don’t think I am supposed to know this, but…”
8. “I don’t want to discuss this in e-mail. Please give me a call.”
9. “Don’t ask. You don’t want to know.”
10. “Is this actually legal?”

Electronic documents are increasingly becoming an important aspect of all types of litigation, including criminal cases.  But illegally accessing that information has also become a crime in and of itself – and a federal one at that.  Thus, I’m working on a future post entitled, “101 Ways to Get Into Trouble Using Email.”  In summary, it’s not a good idea to put anything in an email that you wouldn’t be comfortable having displayed to a panel of twelve jurors on a huge screen.

 - 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

Got Cell Phone Records?

If you have a case in which you will need to subpoena cell phone records, no need to reinvent the wheel…

I came across this posting of Mark Bennett’s regarding addresses of the major cell phone companies to which to serve subpoenas, which can be used in either civil or criminal cases.

Here is the link.

– John H. Bryan, West Virginia Attorney.

Computer Crime Charges On the Rise in WV

The Charleston Daily Mail published a story today about another child porn bust in Kanawha County. This is proving to be an ever-expanding area of criminal law, both nationally and in West Virginia.

Robert Eugene Simmons, 32, was arrested by members of the West Virginia Internet Crimes Against Children task force after giving officers permission to search his computer, according to the criminal complaint.

The arrest comes less than a week after the first child pornography sting in the Kanawha Valley where ICAC officers used peer-to-peer file sharing to observe child pornography distribution. This type of observation has already been successful elsewhere in the state.

The article stated that: “Simmons, and others arrested for distributing child pornography, may face more charges after their computers’ hard drives are examined, said State Police Sgt. P.C. Koerner, who aided in Tuesday’s arrest.”

For any defense attorneys who have not yet faced charges such as these, here is what they have been doing: they seize the computer, it then is sealed and placed in the State Police detachment evidence room. They then have the option of doing a “live preview” of the hard drive to essentially take a peek at what could be on the hard drive. Then the computer is transported to Huntington, West Virginia, to the state’s forensic computer expert. At that point, the proper procedure is to make a “clone” of the hard drive before anything else is done with the computer.

The article further stated that “Each file shared over the Internet has a fingerprint attached to it. What we’re able to do is, we’re able to track where those files are going. As a computer forensics expert will tell you, each file has should be “hashed” which gives you this “fingerprint” – and if that is not done, then there could be some deficiencies with the evidence.

With child porn charges, defendants can be charged in state court, or they can be charged federally. The federal charges bring a minimum sentence of 10 years. If the charges are federal, it can alter your access to the evidence (i.e., computer). Federal prosecutors demand that the defendants attorneys or experts not be allowed to possess their own “clone” of the hard drive, as can be allowed if the charges only exist at the state level. I’m not sure what makes the federal prosecutors God, but for some reason the state police and defense experts are afraid to disobey the AUSA’s demands.

The protocol they use is this: they first make a clone of the hard drive, then the defense clone gets placed in a safe in the evidence room; the defense is given the only key, then when they want to analyze the computer, you are forced to do it under supervision of the state police. Now, if the charges are in state court only, then you can get an order from a circuit court judge to possess a clone of the hard drive. By the way, the feds insist on this even if no child porn has yet been found on the hard drive.

Speaking of experts, it is extremely important to retain an defense expert from the very beginning. The state has an expert are their side from the very beginning. You must have a forensic computer expert who can observe any and all manipulation of the hard drive by the state’s experts, as well as perform his or her own analysis of the hard drive. The important thing here is to prevent spoilation of evidence that could be exculpatory, and to foreclose the possibility of any manufacturing of evidence by the state, as well as to be able to give an opinion at trial regarding the reliability of the state’s procedures. If anyone is in need of an expert for computer-related charges, contact me and I can put you in touch with a very good one.

I think this is a trend we will continue to see in West Virginia, both with child porn charges, and with online solicitation charges. There is not much case law yet in this state for these types of cases, so many of the defenses have not yet been tried as they have in other states.

You can read the full article from the Charleston Daily Mail here.

– John H. Bryan, West Virginia Attorney.

State’s Star Witness Testifies in Leftwich Murder Trial

From today’s Beckley Register-Herald:

Note: A couple of things stick out here: One, the victim officer and his fellow officer, Reynolds, both had been drinking according to the testimony at trial. Then they drove the murder scene where the victim attempted to make an undercover buy. Who was driving? The article didn’t say, but the obvious conclusion is that someone was drinking and driving. If Reynolds was the driver, then why wasn’t he investigated for DUI? I think we all know the answer to that. Had it been you or I, we would have been arrested.

Secondly, Dr. Iouri Boiko, who was at the time of the crime working for the State Medical Examiner’s Office (See my prior posts regarding this office here) testified that he believed that the victim’s .07 BAC level at the time of his death was that of a “practically sober person.” What a joke. Please, all WV DUI lawyers out there: at your next DUI trial subpoena Dr. Boiko as an expert witness, you know that you can at least get him to testify that a .07 is “practically sober.” The doctors from the State ME’s office are about the most untruthful and scandalous quacks ever to have an M.D. (or D.O.). The entire profession should be ashamed of these people who work for the people of the State of WV, but who scandalously slant their testimony so as to deny justice to those charged with crimes. I’m not defending the monster who committed this crime, just pointing out that our system is severely flawed. We absolutely must insert some neutrality into the State ME’s office and the State Forensic Lab.

Lastly, there needs to be accountability for the police. Is it good policy to have these undercover narcotics officers roaming around in police vehicles drinking, driving and making undercover buys with their girlfriends present? Does anyone see a problem with this? Having previously investigated pattern or practice police misconduct for the Department of Justice, it disturbs me that the Beckley PD didn’t turn the investigation of this incident over to the FBI, or at least the WV State Police. Once more, what sucks (for lack of a better term) for this guy, Leftwich, and for his co-hort who was already convicted, the judge is not allowing the defense to make an issue of these questions. If you are going to try someone for murder, at least let them have a shot at defending themselves. Again, I’m not defending either of these guys, but what if it was you, or your son or daughter, on trial? Believe it or not, innocent people do get charged with crimes – especially in West Virginia. – John H. Bryan, West Virginia Criminal Defense Attorney.

Raleigh County chief deputy prosecutor Kristen Keller displays a photograph of the area where Beckley Police Detective Cpl. Chuck Smith was shot to death on Aug. 29, 2006. Cpl. Will Reynolds, left, was one of two witnesses.
Rick Barbero / The Register-Herald

“After I saw him take out his badge, my reaction was, ‘Something’s gone wrong’”

LEFTWICH MURDER TRIAL

By Michelle James
Register-Herald Reporter
A Beckley police officer who witnessed the shooting death of Detective Cpl. Chuck Smith testified Tuesday he sensed something was wrong just seconds before his friend and fellow officer was gunned down on a city street.

“After I saw him take out his badge, my reaction was, ‘Something’s gone wrong,’” Cpl. Will Reynolds said, continuing, “because there was no reason he would take his badge out.”

Reynolds testified on the second day of Thomas Leftwich’s murder trial. Leftwich is charged with first-degree murder, conspiracy and felony use of a firearm in the shooting death of the 29-year-old Smith in the early-morning hours of Aug. 29, 2006.

Leftwich, 25, is claiming self-defense. According to his attorney, Mark Hobbs, Leftwich was afraid he was about to be robbed and thought Smith might be reaching for a gun.

Reynolds recalled the hours leading up to Smith’s death. The two off-duty officers and close friends went out for dinner and visited a number of Beckley nightspots. It was at the last spot they visited, Pikeview Lounge, Reynolds said, where Smith was approached by a man who Reynolds would later learn was Timothy Blackburn.

“Chuck came over to me and told me we had to go,” Reynolds told the court, explaining Blackburn had planned to buy narcotics from Raushan McDougald, who was well known to narcotics officers as “Jellybread.”

Reynolds and Smith by that time had been joined by Smith’s then-girlfriend, Jasminda Gonzalez, who went along with the two officers.

“(We had) no plans of arresting ‘Jellybread,’” Reynolds testified. “We planned to observe the incident … and start an investigation.”

Reynolds told the court “Jellybread” was never located, adding the men instead encountered Michael Martin, who offered to help them purchase drugs. Martin was convicted of murder in December and sentenced to life in prison.

“He said, ‘Are you looking?’” Reynolds said of Martin, explaining that was street slang for drug dealers. “I said, ‘No,’ and Chuckie said, ‘Yes.’”

Shortly thereafter, Reynolds said, Martin led the three, in Smith’s police vehicle, a Jeep Grand Cherokee, to a parking lot at the corner of South Fayette Street and Willow Lane.

Reynolds said Smith walked with Martin across Willow Lane to the foot of a stairwell leading up to a house on top of a hill, now known to be the Leftwich residence.

“Chuckie looks at me and says, ‘I’m in, I’m out,’” Reynolds recalled, explaining those words confirmed there would be only a transaction but no arrest.

As Smith and Martin stood at the base of the steps, looking up at an individual later identified as Leftwich, Reynolds heard what he called a “brief confrontation of words,” saw Smith reach into his pocket and show Leftwich his badge. He then heard “the first shot.”

After the shots were fired and both Martin and the gunman fled, Reynolds moved Smith across the street in an attempt to get him to safety, he said. He also moved the vehicle to use as a shield.

Reynolds testified he checked Smith to see what kind of wounds the officer had received.

“I check his heartbeat and his heart is beating really fast and it just stops,” an emotional Reynolds recalled. “I felt a warm substance running down my leg in my shoe.”

“Blood,” Reynolds responded when asked by chief deputy prosecutor Kristen Keller what that substance was.

Leftwich’s attorney, Mark Hobbs, questioned Reynolds as to how much alcohol he, Smith and Gonzalez had consumed, and why Gonzalez was with them.

Reynolds testified he consumed beer, but said he did not believe any of the three was intoxicated. He said he saw Smith consume only a small mixed drink with dinner.

Dr. Iouri Boiko, who at the time of Smith’s death worked with the state medical examiner’s office, told the court that of the four bullet wounds Smith received, the most damaging was to his left chest, which perforated both lungs and damaged his heart.

Responding to Hobbs’ inquiry of Smith’s .07 blood alcohol level at the time of his death, Boiko said he believed that BAC level was that of “practically a sober person.”

Dr. Michael Kelly, chairman of emergency services at Raleigh General Hospital, told the court the first EMS record after Smith was shot was at 4:32 a.m. and reported no cardiac activity, no blood pressure and indicated Smith was not breathing. Kelly said Smith arrived at the hospital about 15 minutes later and was pronounced dead at 4:56 a.m.

Raleigh County Sheriff’s Detective Cpl. J.C. Canaday and State Police Sgt. Craig Light testified regarding two search warrants obtained for the Leftwich residence in the hours after Smith’s death.

Based on information from Reynolds that the gunman had come from the house on the hill and had vanished in the same direction, Leftwich’s residence was searched.

During the first search, Canaday said, residents were removed from the home and Thomas Leftwich approached him, confessed he had shot Smith and showed him where he had hid the weapon.

Canaday read a list of items recovered from the residence during the two searches, including shirts, a cell phone, guns, ammunition, counterfeit bills and a bullet-ridden target of a police officer.

Matthew White, a firearm and toolmark examiner, testified the bullets that struck Smith came from Leftwich’s Smith & Wesson .357.

State Police Senior Trooper R.A. Daniel testified regarding “background” checks done on 19 weapons seized from the Leftwich residence.

Daniel said the murder weapon and two other weapons had been reported stolen. Two weapons, he said, were sold to Leftwich, and it was not determined if the others had been stolen.

Hobbs countered that person-to-person sales are not always noted and Daniel had no evidence proving the other weapons had been stolen.

The trial continues at 9 a.m. today.

— E-mail: mjames@register-herald.com

Accused Cop Killer To Claim Self Defense

State Police Capt. Scott Van Meter, left, looks on as chief deputy prosecutor Kristen Keller asks Raleigh County Circuit Judge H.L. Kirkpatrick to disallow any negative commentaries on the character of the late Beckley Police Detective Cpl. Chuck Smith Thursday during pre-trial motions in the Thomas Leftwich murder case. Leftwich is accused of shooting Smith to death during an Aug. 29, 2006, undercover drug operation.
Rick Barbero / The Register-Herald

From the Beckley Register-Herald:

Note: What the defense is getting at here is allegations that the victim narcotics officer was not acting entirely in the capacity of a police officer when this happened. It is claimed that the victim was at a bar drinking prior to the shooting, and that when the shooting happened, he was unarmed, and his girlfriend was in the car several steps away, along with his partner, who was also purportedly unarmed at the time.

If the defense is allowed to bring in some of these facts – which inarguably are in violation of the police operations manual, then it enables them to change the scenario from undercover cop killed in the line of duty, to off duty cop killed under questionable circumstances. This will be absolutely necessary if the defense is going to present self defense to the jury.

However, it doesn’t look like the Judge is going to give the defense much latitude with this argument. Regardless, his co-defendant was already convicted, and he had a much better chance of getting off because he wasn’t the shooter. He probably will inevitably be convicted, as he should. But its possible he will get convicted of 2nd degree murder if the jury runs with any of these facts. – John H. Bryan, West Virginia criminal defense attorney.

Accused cop killer to claim self-defense

Pre-trial motions heard in 2006 shooting of Beckley police detective

By Michelle James
Register-Herald Reporter

Two hours or so after he fired the shots that took the life of Beckley Police Detective Cpl. Chuck Smith, Thomas Leftwich told State Police Capt. Scott Van Meter he thought Smith might have been reaching for a weapon.

“I thought he was reaching for a gun,” Leftwich told Van Meter just before 7 a.m. on Aug. 29, 2006. “I didn’t know what he was reaching for.”

Van Meter read Leftwich’s short statement Thursday during pre-trail motions in Raleigh County Circuit Court.

Leftwich is charged with one count each of first-degree murder, conspiracy and use of a firearm in the death of the 29-year-old Smith.

During Thursday’s hearing, his attorney, Mark Hobbs, told the court the planned defense during the trial, which is slated to begin March 10, will be self-defense.

Hobbs said “it was all about (Leftwich’s) state of mind at the time” of the shooting, adding Smith did not identify himself and was fumbling in his pocket.

Although toxicology reports on Smith showed his blood-alcohol content was below the legal limit, Hobbs requested a sample of his blood in order for the defense to perform its own testing.

Chief deputy prosecutor Kristen Keller argued “BAC is irrelevant,” adding even if the toxicology is disputed, it doesn’t mean Smith’s death was justified.

Hobbs, saying he believed Smith had violated police department policies the night he was killed, requested permission to enter as evidence the Beckley Police Department’s policy manual.

Should Kirkpatrick allow submission of the manual, Hobbs said Marvin Robinson, a former city detective, would be an expert witness for the defense.

Keller questioned the relevance of the manual and added not only was there no evidence Smith had done anything wrong on the night of his death, but that if he had been in the wrong it is “no defense saying he wasn’t following rules and procedures.”

Keller asked Kirkpatrick to not permit Smith’s character to be called into question during the trial.

Kirkpatrick said there would be no “attacking or trashing the reputation” or Smith’s character.

Although Hobbs told the judge Smith’s character was not generally an issue, he said some of the conduct from the night of his death was. He asked Kirkpatrick to give guidelines on “how far he could go” when talking about what Smith had done prior to the incident.

Kirkpatrick said he would put together a pre-trial order to discuss what matters are permissible and what are off-limits.

Another pre-trial hearing has been scheduled for 1:30 p.m. next Wednesday, at which time Kirkpatrick will rule on the request for a blood sample as well as on the admissibility of the department policy manual. The hearing will also determine if Robinson is qualified to testify as an expert witness on the manual.

Leftwich’s co-defendant, Michael Martin, who set up the alleged drug buy between Leftwich and Smith and was himself convicted of first-degree murder in December, will also appear at the hearing to determine if he is willing to testify at Leftwich’s trial or if he will exercise his Fifth Amendment rights.

Leftwich, barring a negative medical exam, will wear a shock belt mechanism during his trial.

Kirkpatrick explained the belt will allow the court to reduce the number of police officers needed in the courtroom. Should Leftwich not comply with orders or get out of hand, Kirkpatrick said, a trained officer would administer a shock that would temporarily disable him.

Leftwich agreed to wear the belt.

— E-mail: mjames@register-herald.com

WV Makes National Headlines for Mistake in Medical Examiner’s Office

From the Associated Press and found at FoxNews.Com:

Note: The state medical examiners in West Virginia, who are state employees, make mistakes like anyone else. However, the only time they will ever admit it is when they are caught red-handed. If you ever have the pleasure of having one of them testify against you in a trial, you will see that they put neutrality and science aside and concentrate on achieving the objectives of the State of West Virginia – be it for prosecutors or the State Police. Don’t let them fool you, their ultimate goal is not the truth, it is conviction. – John H. Bryan, West Virginia criminal defense attorney.

Wrong Body Accidentally Buried in W.Va. After Coroner Confuses Fire Victims

CHARLESTON, W.Va. —

Authorities mistakenly released the body of an adult woman to the family of a 2-year-old fire victim, and the woman’s body was buried in the girl’s grave, officials said.
A routine office check at the state Medical Examiner’s Office earlier this week showed that the body of Victoria Hope Starcher of Cottageville was still there. The child and her brother, 4-year-old Joseph Allen Starcher II, were both killed Feb. 8 when their two-story house caught fire.

Funeral services for the children were held Feb. 15 in Jackson County, said John Law, spokesman for the state Department of Health and Human Resources.

Law said the employee who mistakenly released the woman’s body probably failed to check a label on the body bag against information identifying the remains. The woman, who has not been identified, also was a fire victim who was killed in a different blaze.

Officials are investigating and disciplinary action could be taken if any wrongdoing is found, Law said.

Dr. James Kaplan, the state’s chief medical examiner, and state Bureau of Public Health acting chief Ron Forren informed the girl’s parents, Joseph Starcher and Tammy Scarberry, of the mistake Tuesday.

“I understand that they were extremely upset as can be expected, but they were also very impressed that Dr. Kaplan took the time to personally drive to Jackson County and explain to them what happened,” Law said Wednesday. “They assured the family that DHHR would assume all the cost of exhuming the body, getting the right body to them and doing whatever we have to do to make it right.”

There were no telephone listings for Starcher or Scarberry in the Cottageville area.

Law said the woman’s body will be exhumed after a circuit judge issues an order, which is required for exhumations.

18 Students in Kanawha County Allege Molestation by Piano Teacher

From today’s Charleston Daily Mail:

Note: Usually in a criminal trial, evidence of past bad behavior, or alleged past unlawful behavior, is inadmissible to prove that the person acted in conformity with the past behavior in the case at trial. However, in instances where the past conduct is extremely similar to the current charges, it can be used as evidence to prove modus operandi – or as it is usually referred to, his “M.O..” In sexual molestation cases, many of the old allegations will have long passed the statute of limitations, but they can still be used to convict on current charges. – John H. Bryan, West Virginia criminal defense attorney.

17 more former students claim molestation by music teacher

by Zack Pettit
Daily Mail staff

Seventeen more people have come forth and accused St. Albans music teacher Jack Pierce of sexual abuse, police said. All 17 accusations were made by males who had taken lessons from Pierce, St. Albans Police Detective Mark Burdette said. Some of the incidents date back to 1968, he said.

Pierce, 61, has taught private piano and voice lessons for more than four decades. He was arrested Tuesday and charged with first-degree sexual abuse in connection with allegations made by former student Joshua Willard.

Burdette, the lead investigator in the case, said the newest complainants have accused Pierce of nearly identical behavior that Willard reported.

Willard, 18, filed a complaint Jan. 3, alleging Pierce had sexually abused him in 2004 when he was 14 years old.

Since Tuesday, Burdette said police have heard from former students across the country, coming from as far away as Oklahoma.

“The claims are pretty much identical,” Burdette said. “They said (Pierce) made them sleep in bed with him. They’re saying he rubbed their backs, stomachs and genitals. We know some of them are legitimate.”

Willard told detectives he and his brother were dropped off at Pierce’s St. Albans home to spend the night and watch movies, according to the complaint filed in Kanawha Magistrate Court.

Later that night, Willard was coerced into sleeping in Pierce’s bed while his brother slept downstairs on a couch, the complaint said.

While in bed, Pierce began fingering the teenager’s belly button and fondling him through his pants, according to the complaint.

The night’s events made Willard feel uncomfortable, and the next morning he told his mother what had happened, the complaint said.

His mother did not contact police, but she removed her children from Pierce’s classes.

Willard reported the claim to police last month, and Pierce was arrested and taken to South Central Regional Jail. He has since posted bond.

Burdette now is asking any other alleged victims report to police headquarters or mail their written statements to police.

He said it is common for a flood of complaints to come in after an arrest has been made, especially when a case involves juveniles.

“Juveniles don’t want to say anything because they are afraid of what their friends will think of them,” he said. “They don’t want that hassle or publicity. They want to keep it hush-hush.”

He said other victims often feel more comfortable coming forward and more willing to take a stand if someone else’s allegations become public.

Burdette said police are working to substantiate the claims by looking at Pierce’s detailed records dating back to 1989.

“He kept meticulous accounts,” Burdette said. “We will find every single one of these complaints. Everything is documented. He wrote when kids spent the night, went to dinner.”

One of Pierce’s former students, Derek Chase, 23, of Racine, has not contacted police and said he doesn’t plan to.

But he said he was involved in a “similar situation” to what Willard has reported.

Chase previously lived in Winfield and took voice lessons from Pierce for about four years, beginning when he was a sophomore in high school.

He said his former teacher often took him out to dinner, to movies, even to Broadway shows in New York and a luncheon at The Greenbrier.

Chase said he at first didn’t think anything was out of the ordinary, but his feelings about his teacher changed after an incident he would only describe as being “similar” to what Willard reported.

Chase said he didn’t want to go into detail.

“I know what he’s done to me,” Chase said. “I know I’ll be held accountable for what I say, but I know from my experience he’s guilty.”

Chase, who now works for Massey Energy, is married and expecting his first child.

He said he didn’t go to police for several reasons.

“In my case, I didn’t really think I had anything to stand on because I was 18 (at the time),” he said. “In a way, it’s embarrassing to even talk about. It’s a messed up situation.”

Chase said he stopped taking lessons from Pierce not long after the alleged incident.

But some other people who know Pierce describe the man as “courteous,” and say they can’t believe the accusations against him.

Beverly McCormick of St. Albans said she has been a friend and a neighbor of Pierce’s for about 48 years.

“I can’t believe any of it’s true,” she said. “It’s a big shock, big surprise. He’s somebody I go to Wal-Mart with and go to the movies with.”

Burdette said he thinks the allegations have been difficult for many people in St. Albans to deal with.

“It’s kind of hard for them to believe because he’s considered a kind of pillar of the community,” he said. “It’s something they can’t comprehend or conceive him doing. He’s buffaloed people.”

Burdette said he isn’t sure how long the investigation will continue, or how many students might be involved.

Police have said there are 200 students enrolled in Pierce’s music lessons right now. Burdette estimated Tuesday that Pierce has taught anywhere from 2,000 to 3,000 students over the course of his career.

Pierce has a preliminary hearing scheduled for Feb. 21.

WV State Trooper Commits Suicide

From today’s Herald-Dispatch:

Note: I posted previously about possible mandatory mental health screenings for WV State Troopers here. – John H. Bryan, West Virginia criminal defense attorney.

Apparent trooper suicide comes amid mental health policy changes

Feb 13, 2008 @ 01:43 PM
Herald-Dispatch.com

CHARLESTON, W.Va. (AP) — A 10-year West Virginia State Police veteran died of an apparent self-inflicted gunshot wound just hours after he was relieved of his duties.

The body of Cpl. V.J. Gall, who had been stationed at the Romney detachment in Hampshire County, was found at about 9:30 p.m. Tuesday, Department of Military Affairs and Public Safety spokesman Joe Thornton told The Associated Press on Wednesday.

The shot was not fired from Gall’s service revolver, which had been taken from him along with his badge a few hours earlier, said Thornton.

Thornton declined to say why Gall had been placed on administrative leave.

Gall, 46, was unmarried and had no children.

Gall’s death, which Thornton said will be investigated internally, is the second apparent West Virginia Trooper suicide in less than a year. Cpl. Marlo Gonzales shot himself July 18 outside his Putnam County home.

Gonzales’ death prompted Gov. Joe Manchin to ask for a review of suicides among law enforcement. Last month, the panel studying the issue recommended that troopers undergo yearly behavioral health screenings.

The panel also suggested that the agency do more to advertise available mental-health services and to help troopers and their families feel more comfortable about seeking treatment. Another recommendation was to train supervisors to identify people who may need help.

Thornton said the recommendations are still in the process of being implemented.

“The focus and idea is to implement all of them,” he said. “However, there are some that are going to be a little more time-intensive in terms of getting them up and running.”

Another Update on Bus Driver DUI Arrest in Monroe County

From today’s Register-Herald:

Note: The latter half of this article contains a very informative recitation of what the DUI laws are in the State of West Virginia. West Virginia is one of the states that allow a conviction if the BAC result is .08 or greater (solely based on the BAC result). Other states, such as North Carolina focus more on whether or not the person was intoxicated, regardless of what the BAC reading was. However, these states do use the BAC reading (from the intoxilyzer machine, not the field preliminary breath tests) as evidence that the person was intoxicated. Guilt is shown mostly by the officer’s testimony regarding the defendant’s performance in the field sobriety tests, and regarding the quality of driving that took place immediately prior to the stop. Having formerly prosecuted DUI’s (DWI’s) in Raleigh North Carolina, I have witnessed defendant’s acquitted despite having BAC results of .12 and .13 – well above the legal limit of .08 – because the judge was convinced the person was not “impaired” despite the high BAC reading. – John H. Bryan, West Virginia criminal defense attorney.

See UPDATE here.

Bus accident, arrest throw the spotlight on DUI laws

By Christian Giggenbach
Register-Herald Reporter

A school bus accident in Monroe County last week and the subsequent arrest of the driver on a DUI charge has thrown a spotlight on the state’s drunken driving laws.

Almost everyone knows West Virginia’s legal limit for driving under the influence is a blood-alcohol content of .08.

But few understand exactly what .08 means legally and why a person can be charged and convicted for drunken driving with BAC levels that are much lower.

State Police charged Clyde Watson Jr., 62, of Union, with DUI while transporting minors after the bus he was driving crashed down a 120-foot ravine last Tuesday. Eleven children were on the bus, but no one was injured.

Police said Watson had a .022 level of alcohol, well below the .08 limit. Watson told police he had taken Nyquil, an over-the-counter cold medicine that contains alcohol, the night before, and Monroe Prosecutor Rod Mohler said later in the week “there are some issues that need to be explored regarding whether (Watson) might be a diabetic and how alcohol of any amount would affect his system and be shown on a breath test.” Watson told police he felt “funny” just before the accident.

Monroe school officials said Watson previously had a spotless 14-year safety record.

- – -

The Register-Herald asked Charleston defense attorney Carter Zerbe to explain the state’s DUI laws, which are some of the strictest in the country.

“In West Virginia, it doesn’t matter if you are intoxicated or not,” said Zerbe, who has been defending DUI clients for 20 years. “A person could have a BAC level of .08 and not be drunk, but if it’s at that level, or above, you are guilty of a crime regardless.”

Zerbe said the law is known as the “per se” law and a person can be convicted of DUI even if the person shows no outward signs of intoxication.

“Another misconception is that you have to have a scientific test in order to be convicted of DUI,” Zerbe said. “If a police officer testifies that a defendant had slurred speech, or if the person staggers while being videotaped, that can sometimes be sufficient evidence for a conviction, even when there were no blood tests or breath tests.”

Zerbe said police must first have a “reasonable suspicion” of drunken driving before pulling a car over.

Many times, a burned-out tail light or expired license plate gives an officer probable cause to stop someone, he said.

If the officer smells alcohol or observes symptoms of intoxication, the officer can request that the driver perform three field sobriety tests, which include a vision test and walking tests.

“If necessary, then the officer can administer a preliminary breath test, where a person blows into a tube,” Zerbe said.

That test is not admissible as evidence in a trial, but can give the officer probable cause to ask for a blood test or a secondary breath test, both of which can be used as evidence.

But what if your BAC level is below .08? Can you still be charged and convicted of drunken driving?

Yes, because it’s not the amount of alcohol in your system that matters, but rather how much that alcohol impairs your ability to drive, Zerbe said.

Remember, the .08 standard is used to “presume” someone is drunk; below .08, alcohol can still affect some people’s ability to drive, he said.

“You can be convicted if alcohol impairs your ability to drive,” Zerbe said, “even though your BAC is below .08.”

Mandatory Mental Health Screenings for WV State Police

From today’s Charleston Gazette:

State Police trying yearly behavioral health screenings

By The Associated Press

State Police are working to implement yearly behavioral health screenings for troopers, based on recommendations from a panel studying suicides among law enforcement.

Joe Thornton, deputy secretary of the state Department of Military Affairs and Public Safety, said the goal is to implement all of the committee’s recommendations, though time and resources may cause some delays in putting them into practice.

While the existing system, including confidential counseling services, is adequate, the panel says in its Jan. 2 report to Gov. Joe Manchin that more could be done, including erasing the stigma often associated with seeking help for emotional issues.

It suggested the agency try mandatory screenings for five years.

The agency also should do more to advertise the available mental health services and to help troopers feel more comfortable about seeking treatment.

The panel also recommended making psychological health and stability an integral part of performance ratings and reinforcing the occupational hazards of the job during recruit training.

It also suggests training supervisors identify people who may need help and reviewing how prescribed medicines may affect troopers’ work.

Besides Thornton, the committee included John Linton, vice chairman of the Department of Behavioral Medicine at West Virginia University; John Bianoni, commissioner of the West Virginia Bureau for Behavioral Health; and Carl Berlin, a retired State Police lieutenant.

Manchin sought the review after Cpl. Marlo Gonzales, 39, a 13-year veteran of the force, was found dead last fall in his cruiser from a bullet fired from his service weapon.

His death was the second suicide by a West Virginia state trooper since 1999.

Note: as a West Virginia criminal defense attorney, my immediate thought upon reading this article was, if mental health screenings are mandatory for WV State Police Troopers, then mental health records will definitely exist for all Troopers. In many instances, mental health records are admissible in court as to the credibility of a witness. I can think of no other witness who’s credibility is more important than that of our law enforcement officers. It would be interesting to see what would happen to the flood of motions that would surely be forthcoming if these screenings become mandatory. – John H. Bryan, West Virginia criminal defense attorney.