An article in the West Virginia Record commented on several West Virginia Supreme Court Justices, Justices Ketchum and Davis in particular, giving an attorney a “tough time” during oral arguments:
The examination of Attorney L. during oral arguments was so one-sided that Ketchum even suggested to attorney Thomas M., who represented Pullman and Structural, not say anything that would lose him the case.
And when Tiffany D., who was arguing for Ershigs, reminded the justices that the party harmed by the sanctions was AEP and not the law firms that handled the case, Ketchum responded, “You don’t think AEP has a nice malpractice suit against their lawyers?”
This brought back memories. I was once before the WVSC for oral arguments and my opponent was given a really “tough time”. After they finished, they told him to sit down, pointed at me, and told me to stand up, it was my turn. I looked at them and said, “your honors, I think I’ll just quit while I’m ahead.” One of the same Justices said “I think that’s a good idea”. So I basically just sat down.
I had a felony criminal case going to trial tomorrow. But, an unusual thing happened. The judge dismissed the cases on Friday by granting my motion to dismiss. This is an interesting case, in a macabre way.
My client, who was an EMT, was alleged to have taken a photograph of a deceased body – a suicide victim. That photograph was alleged to have been text messaged to his wife – another EMT. Additionally, the photograph was alleged to have been shown to other individuals. When authorities found out about these allegations, they wanted to prosecute. But there was a problem: in West Virginia it is not against the law to take photographs of deceased bodies. So here were the charges:
W. Va. Code § 61-8-14 provides:
If any person unlawfully disinter or displace a dead human body, or any part of a dead human body, which shall have been placed or deposited in any vault, mausoleum, or any temporary or permanent burial place . . . he shall be guilty of a felony, and, upon conviction, shall be confined in a state correctional facility for a determinate sentence of not more than five years.
The grand jurors of the State of West Virginia, in and for the body of the county of Greenbrier, upon their oaths present that, on or about April 20, 2012, in the said county of Greenbrier, CLIENT feloniously, unlawfully and intentionally disinterred or displaced a dead human body, or any part of a dead human body, placed or deposited in any vault, mausoleum or any temporary or permanent burial place. More specifically, on or about April 20, 2012, in Greenbrier County, West Virginia, CLIENT, while working as a driver for the Funeral Home, transported the deceased body of VICTIM from Appalachian Regional Hospital in Summers County, West Virginia, to the Funeral Home in Monroe County, West Virginia. Furthermore, on said date, CLIENT, while en route as indicated above, removed the Identification Tag. Such act was against the peace and dignity of the State of West Virginia and is a violation of West Virginia Code § 61-8-14.
The obvious problem with the indictment was that, according to the statute, it did not allege a crime. We all know that the act being prosecuted is the taking of the photograph. However, in an act of legal acrobatics, they are technically prosecuting for the alleged removal of a body tag. We filed several motions to dismiss, and the motions were set for an evidentiary hearing. We subpoenaed the investigating officer, as well as the funeral home embalmer to testify.
The investigating officer testified that the embalmer told him that upon arrival at the funeral home, he observed the body still inside the client’s vehicle, and that the body tag was laying loosely on top of the body bag. However, the embalmer was the next witness. He testified that he never observed the body while it was still inside the vehicle, and that he had no recollection of the location of the body tag. Furthermore, he said that it was in the client’s job description to assist him by transporting the body inside the embalming room, and to remove the body bag, clothing, and the body tag itself (the removal of which the state was arguing was a felony offense). This is, of course, performed by first responders, as well as funeral home employees every day across the state, and it would be unfortunate to make them all felons.
The only West Virginia case law on the “disinterment” statute was State v. Duncan, and it involved a woman who dug up a murder victim from a shallow grave for the purpose of planting the body in a river so that it could be discovered by authorities. Apparently she had dumped the victim’s vehicle in the river, and then realized that if the body was not discovered it would look suspicious. So she was going to dump the body in the river so that it could be found. She apparently gave no thought to whether or not the bullet hole in the victim’s head would be at odds with her drowning set-up. Anyways, she was charged with “disinterment” since she was not the actual murderer. The WV Supreme Court held that the removal of a body from a shallow grave did qualify as a temporary or permanent burial due tot he fact that the body is actually covered with dirt, etc. The decision left no wiggle room for a prosecutor to argue that a body bag also qualifies as a temporary place of burial.
The Judge in our case discussed this case, and also discussed the fact that only next of kin have the right to “bury” somebody, and that transportation from the coroner’s office to the funeral home in a body bag, by non-family members cannot be considered “burial”. And criminal statutes are to be strictly construed. The word “burial”, at least in the dictionary, means “grave” or “tomb”. Therefore, a body bag, just isn’t a temporary place of burial – even where there is an unpopular defendant and public outcry for punishment. Even though I love to try jury trials, there is no better result than avoiding the possibility of conviction altogether with an outright dismissal of the case.
Unfortunately we lost at jury trial. But we just received an order from the Federal Judge overturning the jury verdict and granting judgment in our favor. There will be a new trial to determine damages. Yes!
Update: Link to newspaper article.
2nd Update: Gazette article by Zac Taylor. Some excerpts:
In his order filed Friday afternoon, Goodwin recalled the Los Angeles riots in 1991, sparked after a jury acquitted Los Angeles police officers in the beating of Rodney King despite video footage of the incident.
“The public had seen the tape. The Los Angeles riots ensued,” Goodwin wrote in the order. “Here and now, as there and then, the jury did what they thought was right but simply got it wrong.”
The judge said that law enforcement officers are constitutionally prohibited from inflicting “unnecessary and wanton pain and suffering” on detainees. He said that case law also prohibits officers from using physical force in response to chatter from detainees.
. . .
“The video clearly shows Deputy Asbury punching Mr. Sawyer in the face,” Goodwin wrote, “with the force of his blow knocking Mr. Sawyer’s face to the side.”
. . .
Asbury resumed choking Sawyer. The deputies then took Sawyer to the floor, went out of view for the camera for a short period before returning, and leaving the man on the floor, Goodwin said.
Sawyer stayed on the floor while the officers apparently went on with other tasks, Goodwin said. After a while, Sawyer managed to sit up. He was later taken to the hospital with a fractured nose.. . .
During the trial, Sawyer’s lawyer, John H. Bryan, asked the judge to make a ruling on the case based on the video. Goodwin said that he had “grave concerns” that the testimony of the officers involved contradicted the footage.
“I said in response to the motion that I was reminded of the Marx Brothers’ ‘Duck Soup’ movie, in which the heiress confronts Chico Marx dressed as Groucho and says ‘I saw’, and he replies ‘Who are you going to believe, me or your own eyes?’ ” the judge wrote.
TV News article.
Today we received the Judge’s memorandum opinion and order denying the defendant’s motion for summary judgment, finding that the defendant police officer is not entitled to qualified immunity on our primary claim. This means that we are going to have a jury trial, which is scheduled for later this month.
Here is a recent filing in the United States District Court for the Southern District of West Virginia. It has to be one of the oddest things I have ever done in the realm of criminal defense. Most lawyers know that a civil case in state court can be removed by the defendant(s) in certain circumstances. In fact, most plaintiffs lawyers in West Virginia, usually myself included, do everything they can to avoid such a scenario. But did you know that in certain instances, state criminal prosecutions can be removed to federal court? Well it’s true. Similar to being a plaintiff in the 4th Circuit, usually it would be a really bad idea to handle a criminal case in federal court rather than in state court. Defendants almost always get hammered in federal criminal prosecutions. But conceivably there are situations where you do want to be in federal court – especially one in which state court officials (e.g., prosecutors/magistrate judges) have formed a lynch mob and are going after your client.
28 U.S.C. 1442(a)(1) is known as the federal officer removal statute, and allows state court cases of almost any sort to be removed (forcibly) to federal court. It is usually used in civil cases. For instance, if you were to try to sue an FBI agent in state court, it would quickly make its way to federal court using this removal statute, and it would be there about 5 seconds before being dismissed. But 1442(a)(1) also allows for state criminal prosecutions to be removed. It has rarely been used, mostly because scenarios which would invoke it rarely occur. It requires that a federal officer be charged with a crime in state court, and that he or she have a colorable federal defense (usually federal immunity) to the charge.
In our scenario, my client does indeed have a colorable federal defense – LEOSA (Law Enforcement Officers Safety Act). Passed in 2004, it allows current or required qualified law enforcement officers to carry concealed weapons notwithstanding any state or local laws to the contrary. My client is a federal law enforcement officer and was charged with carrying a concealed weapon. The arresting state cop and the state prosecutors have claimed complete ignorance of the federal law. And since it is a misdemeanor, it has been in the West Virginia magistrate court system, which in this case at least, equaled complete ignorance and disregard for federal law. Using 1442(a)(1) I was able to file a Notice of Removal in federal court, which barring a remand by the federal judge, will completely divest the state courts from jurisdiction over the prosecution.
Between the civil lawsuit we filed over this, and the protracted criminal litigation (which is on its way to a state record for volume of misdemeanor litigation) it is mind numbing that state prosecutors and law enforcement would dedicate so many resources and expenses in order to secure a misdemeanor conviction on one person. Beware, cross your local authorities and you could be next.
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.
There is a story in the Charleston Daily Mail today titled, “Judge refuses to accept guilty plea from ex-firefighter.” Apparently the defendant was charged with second degree arson for the destruction of a boat dock. According to the assistant prosecutor, it may have been an accident – albeit a reckless one. But recklessness or negligence, doesn’t qualify as “willful or malicious” if there was no intent to set a fire or burn an object – thus giving the prosecutor good reason to plead the case to a destruction of property – a misdemeanor.
But apparently the judge wasn’t having it, and refused to accept the plea. Something that I have noticed in arson cases: the judges’ take them very seriously. When buildings or objects are getting burned in their districts, people pay attention and so do the judges. The judge doesn’t want to be the one who let the defendant out on probation only to have something else burn down.
And being that there is no misdemeanor arson charge, the only lesser-included available is destruction of property – which carries a maximum of one year in jail. Oftentimes, an arson defendant already will have served a considerable amount of time in jail because the bond was most likely set extremely high – or else they have been on home incarceration. The result is that the person will not do much time – and hence, the judge doesn’t want to accept the plea.
But can the judge do that? Yes, if he finds there is no factual basis for the plea. But, is there anything stopping the prosecutor from dismissing the charge and recharging destruction of property? Probably not – unless the judge is going to try the case, which of course he can’t do. In any event, the case would have to be dismissed eventually due to lack of speedy trial.
- John H. Bryan, West Virginia Attorney.
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.
The Charleston Daily Mail is reporting breaking news: that email records from West Virginia Supreme Court Justice Spike Maynard to Massey Energy CEO Don Blankenship have been released under court order. The order was the result of a FOIA request and litigation by the Associated Press.
One of the emails contained a link to then-opposition candidate Menis Ketchum’s law firm website, criticizing the types of cases that he accepts. You can see the website for yourself here. Yes, Mr. Ketchum is a personal injury attorney. I’m not sure that is news to anybody. But what’s wrong with representing actual living breathing people who have real problems that were caused by others – i.e., complacent coal companies, reckless drivers, and so on and so forth. Most big-firm lawyers, and indeed the one’s who consider themselves the “elite,” make their living representing legal fictions – business or government entities who cannot feel hurt, pain, sadness, or happiness. These clients, and therefore their lawyers, are concerned only with money. Now there is nothing wrong with money, I believe in the capitalistic system. But I also believe that although personal injury lawyers get a bad name – especially in West Virginia – they are fighting for a real person and their real problems, and therefore advocate for real justice rather than the bottom line.
Another email discussed politics and the election. I guess I just don’t agree with judicial elections in the first place. This is an area of our public system of government that should be off-limits from the corruption of politics. Imagine if our federal judges were elected. It’s bad enough just going through presidential appointments and the senate confirmation process. Imagine if we had national campaign commercials for Supreme Court candidates… That is essentially what we have in West Virginia. It’s not the candidates’ fault. I would run for the West Virginia Supreme Court if I had a chance to win. But the system is wrong.
You know, most out-of-staters, and many West Virginians, have no idea that there is no intermediate court of appeals in West Virginia. We are only one of 8 (I believe) states without an intermediate court of appeals. You can probably guess which those other states are. They are the usual suspects that almost always are hovering near West Virginia on all the rankings lists.
This means that in West Virginia you do not have a right to an appeal. Imagine that. In many cases in West Virginia, including criminal cases, your only hope for appeal is likely to the U.S. Supreme Court. And that is like no appeal at all, because you have about a zero percent chance of getting considered.
– John H. Bryan, West Virginia Attorney.
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
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.
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.
At lunch today, I was thinking about my previous post regarding the Charleston cops spotlighting deer, and it hit me. It all boils down to this:
Case in point: Cops have a suspect. Cops go to suspect’s house. Cops do not have a warrant. Cops illegally enter house. Cops look for evidence. Cops interrogate and get statement from suspect. Cops find what they are looking for. Suspect gets attorney. Attorney files a motion to suppress evidence found based on cops’ illegal behavior (warrantless entry of house). Cops lie and say on stand they were given “consent” to enter. Defendant/suspect says he/she absolutely 100% did not give consent to enter house. Defendant’s parents confirm his/her story. Defendant’s parent’s friend confirms the story. Cops cannot provide signed written consent form (yes, they exist). Judge denies motion to suppress, stating that defendant and witnesses have motive to lie, but that the cops have no reason to lie. Defendant takes plea agreement. Defendant goes to jail or on probation. The end. It happens day after day after day. And in the end, what judge cares if they know the person is guilty? Likewise, what do the cops care? If they fail to find evidence, then the apologize and go on their way. If they do find evidence, they show up in court and say the magic words: “consent,” and boom, the judge denies the motion to suppress. And no one cares but the poor sap who was convicted and the defense attorney banging his head against the wall.
Sometimes practicing criminal defense can be an exercise in futility. People think they have all of these constitutional rights… but, when it comes down to it, you only stand a chance if you can stand in front of a jury and, despite everything found by the police and prosecutors, convince them it would be an injustice to convict your client. Your only hope otherwise is to argue a constitutional technicality on appeal, and who wants to do that when they have some control over their destiny through taking a plea deal – especially in West Virginia where you don’t even have a right to an appeal, and even if you get there, the justices are elected through partisan elections (i.e., good luck Mr. Charged-With-Sex-Crime).
– John H. Bryan, West Virginia Attorney.
In Greenbrier County:
For Prosecuting Attorney, incumbent Kevin Hanson lost big, and at the top of the Democratic ticket for the general election will be Martha Fleshman, who was a complete dark horse in the race. According to the Register-Herald article linked below, she spent only about $1,400 on the race — not including the $992 filing fee. She will face fellow attorney Pat Via, who by the way is an all-around good guy.
For Circuit Judge, incumbent Judge Pomponio emerged victorious over Lewisburg attorney Steve Hunter. He will face Lewisburg attorney (and State Senator) Jesse Guills in the general election.
See the Greenbrier County results here.
UPDATE: The Register-Herald published an article Thursday regarding the county prosecutor race in Greenbrier County, which you can read here.
In Monroe County:
For Prosecuting Attorney, incumbent H. Rod Mohler also lost big – to challenger Justin St. Clair who is a Monroe County Attorney and also an all-around good guy. This was a big race because Rod Mohler had been Prosecuting Attorney for 12 years, and he is also a really nice guy with a lot of support. Justin had been positioning himself to run for the last four years and his hard work paid off.
For Circuit Judge:
Judge Robert Irons narrowly won by about 200 votes. This was a difficult race because it pitted Monroe County voters against Summers County voters, each voting a majority for their resident candidate. I believe the voters made a wise decision as Judge Irons has served the 31st judicial circuit well since he has held office.
See the Monroe County results here.
In Summers County:
For Prosecuting Attorney, incumbent Amy L. Mann, pulled out a major victory over challenger Jason Parmer, grabbing 2,277 votes over Parmer’s 1,280. This race had gotten nasty in the final weeks leading up to the election, and apparently that didn’t play well with the voters of Summers County. In my opinion, the most important quality of a good prosecutor is sympathy and compassion. Not all persons charged with a crime deserve life in prison. Most are generally good people, and most will be back out on the streets before long. A prosecutor who will treat defendants as they themselves would want to be treated, can clean-up the streets much faster than a “lock-em-up-throw-away-the-key” prosecutor. Amy is a compassionate person, and she uses her discretion wisely. But she also knows when to fire both barrels – trust me.
See the Summers County results here.
– John H. Bryan, West Virginia Attorney.
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.
Probable Cause Found in Bluefield Shooting Case – Preliminary Hearings Basically Meaningless in West Virginia
From the Bluefield Daily Telegraph today:
Mario Goodson, 18, appeared Monday for a preliminary hearing before Magistrate Rick Fowler. Fowler found probable cause in Goodson’s case and bound him over to the Mercer County Grand Jury.
Both Goodson and Kenneth Dwayne Eaves, 19, of Bluefield are facing charges of conspiracy and first-degree murder in the Dec. 14, 2007 death of 28-year-old William Jerome Flack of Bluefield. Detective L.B. Murphy of the Mercer County Sheriff’s Department testified Feb. 8 that witnesses allegedly heard Eaves order a second person, Goodson, to shoot Flack.
Wow, that is a big surprise. Many West Virginians do not realize that if they are arrested on a felony, they are entitled to a preliminary hearing in front of a supposedly neutral magistrate to establish whether the police have probable cause to hold you in jail (or on bond) for the charges. They also don’t realize that this process is for the most part a farce, a formality. Preliminary hearings in West Virginia are a joke. The magistrates for the most part are not lawyers and have no legal training on what is and what is not probable cause. They, for the most part, have no idea what is and what is not admissible under the West Virginia Rules of Evidence (of course, there are exceptions).
The West Virginia Rules of Criminal Procedure allow for “relaxed hearsay” in preliminary hearings. This means that the investigating officer can come in and testify to some hearsay if there is a substantial basis for believing that (1) the source of the hearsay is credible; (2) there is a factual basis for the information furnished; and (3) it would impose an unreasonable burden on one of the parties or on a witness to require that the primary source of the evidence be produced at the hearing. Therein lies the problem. Many magistrates will just allow the investigating officer to come in and testify to anything and everything they were told throughout their investigation. Then, the magistrate will say, “well, probable cause is a very low burden, and they have met the burden… I find there is probable cause.”
For instance, I had a client who was charged with a absolutely ludicrous felony charge in Greenbrier County. His preliminary hearing was held by a magistrate in Greenbrier County. The State subpoenaed three witnesses: the investigating officer, and two very disreputable convicted felons whom had been caught red-handed and pointed the finger at my client to try and get a plea deal. They appeared and were waiting in the waiting room as the hearing began. The State called the officer first, and he proceeded to testify to almost entirely hearsay testimony – basically everything the other two idiots in the waiting room would have testified to. I objected to hearsay, reciting the above relaxed hearsay rule, but the magistrate basically said that all hearsay is allowed in preliminary hearings. Thus, the magistrate allowed the hearsay testimony despite the fact that the two idiots were in the next room, so the primary source of the evidence could have testified. Furthermore, they were extremely incredible. One of them was notorious in the county for being a career criminal, having spider web tattoos all the way up his neck. The lying officer however, grinned and testified that he thought the man was credible. I later told this to the Prosecuting Attorney, and he laughed and joked that everyone knew that this was the most incredible man in the county, perhaps the state.
As it turns out, when it came my turn to call witnesses, I obviously tried to call the two idiots in the waiting room, so that my client would at least have the opportunity to confront his witnesses. Believe it or not, the assistant prosecutor, on his first week of the job, objected on the grounds that they may be charging one of them with a crime and one may testify against the other, and that therefore there was a “use immunity issue.” I responded that it was irrelevant, and was the prosecutor’s problem and had no bearing on the hearing. The magistrate however, got really, really worried that she was going to make someone mad in the prosecutor’s office and decided not to allow me to call any of the witnesses that had been subpoenaed to the hearing and were waiting in the next room. Then, that was it: she found probable cause and we were not allowed to call any witnesses. This was an absolute disgrace to our criminal justice system. Imagine if it were your son or daughter that was treated like this.
Fortunately this client was able to make bail, as his case was never even brought to the grand jury. If it were some poor sap who didn’t have any money, he would still be sitting in jail thanks to this meaningless system of magistrates conducting preliminary hearings.
By the way, these same non-lawyer judges are the ones who make decisions on whether or not the police have probable cause to be issued warrants to search your home – or to arrest you. Yes, it’s very scary and very unjust.
Read the full article here.
– John H. Bryan, West Virginia Attorney.
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.
From the Charleston Gazette:
Note: If the woman is telling the truth, then bravo for the judge to immediately halt the hearing, as there is no basis for the plea and the lady is being railroaded. However, there may be other evidence that she is not telling the truth. For instance, there may be a prior statement given by the defendant. It is doubtful that her attorney would advise her to take this plea if there was no other evidence other than the fact that she actually mailed the package. But, if there is not, then she should not accept the plea. Defendants should never be forced to accept a plea even though they are innocent, just because a conviction is possible. – John H. Bryan, West Virginia Criminal Defense Attorney.
Crime details lacking, so judge rejects plea
By Andrew Clevenger
A plea hearing in federal court came to an abrupt end on Thursday, after a Mingo County woman accused of laundering drug money said she had no idea what was in a package she allegedly mailed.
Chief U.S. District Judge Joseph R. Goodwin asked Lorene Canterbury of Dingess to explain exactly what she did to constitute the crime of money laundering.
“I mailed a package from Naugatuck, West Virginia,” she said. The package, which she sent to Chicago, contained two books she bought at Books-A-Million and a manila envelope, she said.
When Goodwin asked her what was in the envelope, Canterbury said she didn’t know.
“Honestly, I can’t say, but I’m taking responsibility for it,” she replied. “I thought it was a T-shirt.”
Goodwin immediately halted the proceeding.
“This plea hearing is over,” he said. “I reject the plea.”
The judge then stood up and walked out of the courtroom.
Canterbury was charged via an information, which generally indicates a defendant is cooperating with authorities. An information cannot be filed without a defendant’s permission.
According to the information, Canterbury allegedly mailed $54,000 in cash on Sept. 17, 2003, for the purpose of laundering the proceeds of powder cocaine sales.
After the hearing, Assistant U.S. Attorney Josh Hanks said the case was now back to square one, as if nothing had ever happened.
When plea deals are rejected by a judge, prosecutors can continue investigating cases and try to get an indictment from a grand jury, or lawyers for both sides can discuss another agreement, he said.
To contact staff writer Andrew Clevenger, use e-mail or call 348-1723.
From today’s Beckley Register-Herald:
Note: Apparently the judge reversed his prior ruling denying the defense the ability to call an expert witness to testify about proper undercover procedure. The reason for the reversal was that the State called their own witness solely to testify as to the “ins and outs of undercover investigations.” Thus, the defense should be permitted to have their own witness testify as to the impropriety of the supposed undercover operation on the night of the killing. This could form the basis for a self-defense claim. Regardless, if the judge is going to allow the prosecution to present pictures of the defendant posing with guns and old targets painted as police officers, which are extremely prejudicial, he should allow the defense to fully develop his self defense theory. This requires looking at the situation through the eyes of the defendant – which requires testimony regarding the victim’s actions that night.
Another thing which stuck out to me was the testimony regarding having girlfriends or wives in an undercover vehicle while performing a drug buy. Both Trooper Van Meter and their expert, Trooper Davis, testified that “in case of an emergency, they could not swear they would not take their wives along.” What a load of garbage. They were obviously coached by the prosecution to say that. Since when is buying drugs an emergency? Obviously anything can happen in an emergency – what is important here is policy and procedure. This is what is scary about our criminal justice system in West Virginia – even WV State Police officers are willing to slant their testimony and lie on the stand in order to help the prosecution obtain a conviction. Maybe no one cares in this case. But, as I always say, you will care when your brother or son is wrongly accused of a crime and the State puts the conviction machine to work against them. – John H. Bryan, West Virginia Criminal Defense Attorney.
State Police Cpl. D.C. Eldridge shows the jury in the Thomas Leftwich murder trial a photo, recovered from Leftwich’s computer, of the defendant posing with weapons. Eldridge testified in Raleigh County Circuit Court that the computer contained digital images of narcotics, money, various weapons on display and the defendant posing with the weapons.
Rick Barbero / Register-Herald Photographer
Defense to begin in Leftwich trial
Following the testimony of three State Police officers, the defendant’s brother and a taped recording of the defendant himself, the state rested its case Wednesday against 25-year-old Thomas Leftwich, charged with first-degree murder, conspiracy and felony use of a firearm in the Aug. 29, 2006, shooting death of Beckley Police Detective Cpl. Chuck Smith.
“I heard him screaming, so I figured I hit him in the leg,” Leftwich said on the tape, adding he was “trying to aim low.”
“I didn’t want to kill the man or nothing.”
The defense will begin presenting its case when the trial resumes this morning. Leftwich is expected to testify at some point in the defense’s case.
Leftwich, in a statement recorded just hours after Smith’s death, was heard explaining what happened in the minutes before and after the fatal shooting of the man he said he did not know was a police officer.
After receiving a phone call shortly after 4 a.m., Leftwich agreed to meet a man he referred to as “Mike,” now known to be Michael Martin, as well as a second person who, in Martin’s words, wanted to buy drugs. Martin was convicted of murder in December and sentenced to life in prison.
Leftwich, who lived in a house atop a hill at the corner of Willow Lane and South Fayette Street, said Martin called and said he was outside waiting. When Leftwich reached the steps leading from his yard to the street below, he said he saw Martin and a “white dude.”
After handing the drugs over, Leftwich said, the person told him “today was my bad day.”
Leftwich told police he feared he was about to be robbed, and when he saw the man reach for what he thought to be a gun, he “pulled out my gun as quick as I could and started firing.”
After firing “three, possibly four” shots, Leftwich said he ran, placing the gun underneath a porch and hiding in his basement.
He told police he knew the person he shot at had been hit.
“He kind of turned around screaming …, ” Leftwich said. “I knew from the screaming that he was hit.”
Leftwich said he decided to confess when he saw his family, including a younger brother, being led from the house in handcuffs after police obtained a search warrant based on information from an eyewitness, Beckley Police Cpl. Will Reynolds.
Earlier in the trial, both Reynolds and Smith’s then-girlfriend, Jasminda (Gonzalez) Curen, testified they saw Smith show Leftwich his badge just before he was shot.
In his statement, however, Leftwich said something different.
“I didn’t see no badges,” he said, adding later, “He could have been reaching for a badge or something, but he didn’t say he was a policeman.”
In his statement, Leftwich said he picked up the loaded Smith & Wesson .357 revolver at the last second because of a bad feeling or “gut instinct.”
Kenneth Leftwich testified he could not remember if he ever told police his brother was a crack cocaine dealer, but said he “told the troopers he might have sold a little bit of marijuana.”
When asked by chief deputy prosecutor Kristen Keller if his brother was a crack dealer, Kenneth Leftwich responded, “I’m not sure.”
Kenneth Leftwich testified he was awakened by multiple gunshots just after 4 a.m. on Aug., 29, 2006, adding there were 15 to 20 shots fired and that he later saw 15 to 20 shell casings in the road.
After hearing the gunshots, Kenneth Leftwich said, he called his brother’s cell phone to “make sure he was OK.”
Keller asked him about additional phone calls and Leftwich said he did not know his brother had shot and killed Smith.
State Police Capt. Scott Van Meter testified that based on phone records there were seven calls between the brothers the morning of Smith’s death.
When shown by Keller a painted picture of a police officer riddled with bullet holes, Kenneth Leftwich admitted he and his brother had used it for target practice, writing their initials, either “T.L.” or “K.L.,” beside each hole. He told his brother’s attorney, Mark Hobbs, the “paint by color” picture had been completed by another brother several years earlier and was the only target he and Thomas ever used.
Although the target depicts a police officer and was marked with a scoring system, awarding different points for different hits, Kenneth Leftwich said he and his brother never discussed or planned to shoot a police officer.
Van Meter told Hobbs the target “looks to me like the rehearsal to doing it (killing an officer),” adding he believed it demonstrated there was an anger toward police.
When asked by Hobbs if he believed that anger was enough to kill an officer, Van Meter responded, “Could be.”
State Police Cpl. D.C. Eldridge testified about photographs recovered from a computer seized from the Leftwich residence the morning Smith was killed.
Eldridge said he recovered 231 photo files, many of which featured narcotics, weapons or money.
In some of those pictures, which were shown to the jury, Leftwich is shown posing with various weapons, including the gun used to shoot Smith.
Hobbs argued the importance of the picture, asking Eldridge if the weapons shown in the photos could be purchased by the general public at a sporting goods store.
“They can be,” Eldridge replied, adding the purchases would be contingent on the buyer’s background and the intended use for the weapon.
State Police Cpl. Jason Davis, who has worked undercover for seven years, testified about the ins and outs of undercover investigations.
When questioned by Hobbs about using his police car as a personal vehicle, as Smith is said to have done, Davis testified his work car was his primary car, and, as an undercover officer, it would look suspicious if he was seen by drug contacts in multiple cars.
Responding to Hobbs’ references and questions regarding Smith’s girlfriend’s presence at the time of the shooting, both Davis and Van Meter testified they, in the case of an emergency, could not swear they would not take their wives along.
Because of Davis’ testimony, Judge H.L. Kirkpatrick reversed a pre-trial ruling, advising Hobbs he would be permitted to produce his own witness to testify about undercover protocol.
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
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: email@example.com
From the Beckley Register-Herald:
Note: As an attorney who has often practiced before Judge Irons, I can vouch that he is a fair and impartial judge and deserves the support of both Monroe and Summers Counties.
Irons seeks third term as circuit judge
Judge Robert A. Irons is seeking a third term as circuit judge for Summers and Monroe counties.
A 16-year veteran of the bench, Irons was elected as the first judge of the 31st Circuit in 1992 and re-elected in 2000. Prior to becoming circuit judge, he practiced law for 12 years, serving a broad range of clients and types of cases, and also served as prosecuting attorney for eight years.
“I deeply appreciate the trust the people of Summers and Monroe counties have shown in me,” Irons said. “It has been an honor to serve as circuit judge and I have done my utmost to be worthy of that trust. For the past 16 years, I have made every effort to be approachable and responsive to all residents of the 31st Circuit, and to treat everyone who comes into the courtroom in a fair and impartial manner. It is gratifying and humbling that so many people have come forward in recent weeks to offer their support in the upcoming primary.”
Irons is a graduate of Union High School and Marshall University, and received his law degree from Washington and Lee University in Lexington, Va. He has attended many specialized judicial training courses at the National Judicial College, and has completed several hundred hours of continuing judicial education through programs conducted by the state Supreme Court.
Irons is currently working with the Summers County Commission to establish a community corrections program as an alternative to incarceration. He said he is excited about this program, which he hopes will both help reduce jail costs and be a productive way to help individuals recover from substance addictions. He hopes to begin a similar program in Monroe County in the near future.
A Monroe County native and lifelong Democrat, Irons is a member of the Hinton Rotary Club and a Paul Harris Fellow. He is also secretary of the Bluegrass Ruritan Club and lieutenant zone governor for Ruritan Zone 1. He has been active in Bluegrass Ruritan (of which his father was a founding member) since 1980, serving as an officer on several occasions, including two terms as club president, and was 2007 zone governor for Ruritan Zone 1.
From the Beckley Register-Herald:
Note: In the article below, I bolded a quote from Judge Kirkpatrick that immediately stood out to me. He says that the previous blood-alcohol testing that was done for the prosecution was done by the State Medical Examiner’s Office, not by an expert chosen by the prosecution. Well, if you have read any of my prior posts regarding our State Medical Examiner’s office, you would know that the prosecution couldn’t hire a better expert for their side if they had unlimited funds to do so. Being that many things in our state are backwards, the State ME’s Office and the State Crime Lab are basically appendages of the police and prosecutors. When they testify at trial they are trained to slant the evidence and their testimony towards the prosecutors. They are hired guns basically. If anyone contests this, then I will be glad to give examples. The end result is that none of their conclusions can really be trusted without independent testing and independent experts looking over their shoulders. Just “google” the WV State Crime Lab and you will find examples of what I am talking about. – John H. Bryan, West Virginia Criminal Defense Attorney.
Leftwich loses bid to suppress evidence
A Raleigh County judge Wednesday denied a motion from Thomas Leftwich requesting suppression of a search warrant and the evidence it allowed officers to obtain from the accused police killer’s South Fayette Street home.
Leftwich, charged with first-degree murder and conspiracy in the shooting death of Beckley Police Detective Cpl. Chuck Smith, is scheduled to go to trial March 10.
Defense attorney Mark Hobbs questioned the probable cause for the warrant, the second issued in the hours after Smith’s Aug. 29, 2006, death. That warrant led to the seizure of a numerous items, including a variety of weapons, ammunition, drugs, videotapes and computers.
Raleigh Sheriff’s Detective Cpl. James Canaday, who signed the affidavit for the warrant, and State Police Sgt. Craig Light, who carried out the search, testified as to probable cause during a pre-trial hearing Wednesday.
The officers told the court that items seen while carrying out the first search warrant led them to obtain a second warrant.
Circuit Judge H.L. Kirkpatrick denied Hobbs’ motion for suppression, telling him there was probable cause for the second search warrant and adding a second warrant was not actually needed and the officers were simply exercising “extreme restraint and caution.”
Kirkpatrick also issued a pre-trail order intended to determine “pending motions, as well as establish parameters of inquiry of witnesses and remarks of counsel.”
Through the order, Kirkpatrick denied Hobbs’ Feb. 21 motion to be supplied with a sample of Smith’s blood in order for the defense to perform its own testing to determine Smith’s blood-alcohol level at the time of his death.
The order mentioned chief deputy prosecutor Kristen Keller’s assertion that the “BAC of the victim is entirely irrelevant when a defendant claims self-defense.” Also, Kirkpatrick pointed out the previous blood test had been completed by the state medical examiner’s office, not an expert of the state’s choosing.
Kirkpatrick also denied Hobbs’ request to enter as evidence the City of Beckley’s general policy manual for police officers. In the order, Kirkpatrick stated there was no written guideline for policy and procedures for undercover operations and said a general policy manual would have no relevancy.
Also, because speculation became a problem during the trial of Leftwich’s co-defendant, Michael Martin, the order prohibits “sheer speculation concerning supposed motives attributable to the victim.”
Martin was found guilty of first-degree murder and sentenced to life without parole.
The order also states the court will not allow the victim’s character to be “trashed.”
Kirkpatrick’s order permits the defense to inquire about and address testimony pertaining to all activities and events surrounding the shooting.
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
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: firstname.lastname@example.org
Lewisburg Attorney Barry Bruce, of the law firm of Barry L. Bruce & Associates, L.C. – also my former employer – is running for Circuit Judge:
From the Beckley Register-Herald:
Barry L. Bruce has announced his candidacy for judge of the 11th Circuit Court, Division 2.
Bruce says he is excited with the opportunity to become a candidate for circuit judge and believes his 30-plus years of experience in litigation and general practice of law qualify him for a position as judge. He is committed to the principles of fairness, respect and following the rule of law to all people involved in the legal system.
Bruce is a 1969 graduate of West Virginia University with a B.S. in business. He pursued an MBA degree at Loyola University in Chicago, and graduated from University of Dayton School of Law in May 1977.
He is licensed to practice law in Ohio and West Virginia. He is admitted to the practice of law in the United States Supreme Court; United States Court of Appeals, 4th Circuit; West Virginia Supreme Court of Appeals; and Supreme Court of Ohio. He opened his law practice in Lewisburg in October 1990; he has practiced in Greenbrier, Pocahontas and surrounding counties since that time.
In 2005 he was named Businessman of the Year by the Business Advisory Council, National Republican Committee.
Before moving with his family to Lewisburg, he lived in Huntington and Beckley and now resides in Ronceverte with his wife, Jane. He is the father of four children, Aaron Bruce of Roanoke, Va., Adam Bruce, U.S. Navy, Oak Harbor, Wash., Sarah Bruce of Greensboro, N.C., and Becky Hayman of Wilmington, Del.
Also running for office is Jim McNeely, the former Prosecuting Attorney for Summers County – against whom I just tried a murder case in December of 2007, more information for which can be found here. Jim is running for State Senate as a Democrat, attempting to fill the seat being vacated by current State Senator Jesse Guills – another lawyer – who is running for Circuit Judge in Greenbrier County, more information for which can be found here.
From the Beckley Register-Herald:
Monroe County man announces his candidacy for state Senate
James W. “Jim” McNeely has announced his candidacy for the Democratic nomination for the state Senate, 10th District.
McNeely, 61, has lived in Monroe County since 1994, first in Greenville and more recently in Peterstown. He lived in Mercer County from childhood until 1994, with the exception of time spent in the military, in school or working for the state Supreme Court.
He is a 1964 graduate of Bluefield High School and a 1973 graduate of Concord University (B.S. in education). He was president of the Concord Alumni Association for three terms (1989-92), was one of those walking the entire “Quest For Scholars” in 1987 and was the 1992 Alumni of the Year. He is also a 1981 graduate of Virginia Tech (M.A., political science public administration) and received a law degree from WVU in 1986, graduating in the top 10 percent of his class and being invited to join the West Virginia Law Review.
McNeely retired in 2007 at age 60 as prosecuting attorney of Summers County after being elected in 2000 and re-elected in 2004, and continues to practice law on a limited basis. He has worked as a West Virginia attorney for more than 20 years, practicing in federal/state courts and in administrative law. Operating his own independent practice, he has represented individuals, corporations, local governments, unions, churches and community groups.
Before receiving his law degree, McNeely was an elementary school teacher and a community development director and city police judge for Princeton.
McNeely has considerable legislative experience. He was first elected to the West Virginia House of Delegates in 1974, at the age of 27, and was elected to four terms in the House during the 1970s and ’80s to represent, at various times, Mercer, Summers, Monroe and part of Wyoming counties in the former 19th and 20th districts. His committee assignments included Judiciary and Education, and he served as the chairman of the Higher Education Subcommittee of the House Education Committee.
In the military, he served as an artillery officer in Vietnam in 1969, and serv-ed in the West Virginia National Guard through the early 1980s. He served as commander of the Hinton/ Ronceverte guard unit in the late ’70s and early ’80s.
Considering himself a well-qualified candidate with a wide range of experience in the military, in the private sector and in all branches and levels of government, McNeely says he will bring that wealth of knowledge and experience to the Senate.
From the Charleston Gazette yesterday:
Ex-bond lawyer gets 33 months
Coleman guilty of embezzling from employer
By Andrew Clevenger
A former bond lawyer will spend almost three years in prison for embezzling hundreds of thousands of dollars from his former firm.
U.S. District Judge John T. Copenhaver Jr. sentenced Leonard S. Coleman to 33 months in prison in federal court on Wednesday for diverting almost $200,000 of bond fees due to his firm into his own bank account.
Coleman pleaded guilty to one count of mail fraud in August. After the embezzlement was discovered, Goodwin & Goodwin managing partner Tom Goodwin fired Coleman in May 2005.
The following year, the State Bar stripped Coleman of his law license.
“Yours has been a tragic fall from grace and good fortune,” Copenhaver said Wednesday.
Coleman, who earned $240,000 a year as partner at Goodwin & Goodwin, now works at Kmart stocking shelves at night, defense attorney Troy Giatras said. Coleman took the bus to Charleston for his sentencing from his home in Elkview, Giatras said.
“It’s a financial disaster that he has created for himself, and he knows that,” Giatras said, likening his client’s situation to a Greek tragedy.
When Copenhaver asked Giatras how his client can ever make full restitution of $192,740, Giatras said Coleman hopes to relocate to a bigger metropolitan area and put his financial and legal expertise to work in some capacity.
The bond community is close-knit in West Virginia, and Coleman has no chance of ever working within it again, Giatras said.
“Within that fraternity, he [is] no longer welcome,” he said.
Assistant U.S. Attorney John Webb noted that Coleman also had diverted the firm’s funds in the 1990s, and was given a second chance.
“He was given a very great opportunity to rehabilitate himself and continue with that firm,” Webb said.
Coleman apologized to his former partners and colleagues at Goodwin & Goodwin, and to the state’s legal community.
“There’s nobody to blame here but myself,” he said. “I’ve made a tragic series of errors. It’s been devastating.”
Coleman said he hopes to someday get his law license reinstated. Coleman noted Judge Copenhaver swore him in as a member of the State Bar in 1981.
According to the November 2006 state Supreme Court opinion disbarring Coleman, the diverted fees were generated from the firm’s bond work on deals that included the Stonewall Jackson Lake State Park project, the state Water Development Authority project and various county housing projects.
In March 2006, Coleman and Goodwin testified before a subcommittee of the Lawyer Disciplinary Board that Coleman previously had stolen between $30,000 and $70,000 of the firm’s money in 1993 and 1994. Goodwin said he did not report Coleman to any authorities or to the State Bar at that time.
Coleman told the subcommittee that he began diverting the firm’s funds again in September 2004 in part to support his “high-maintenance girlfriend.”
“The woman with whom I reside, this has been devastating to her,” Coleman said Wednesday. He told the judge that he was worried about how she will support herself while he is in prison.
“I’ve lost every friend I’ve had over this,” Coleman said. “I don’t even enjoy coming downtown for fear of running into someone I know.”
Copenhaver gave Coleman the maximum sentence within the range recommended by federal sentencing guidelines.
“If anything, [the guidelines] may be a little low in your case,” Copenhaver said.
“You were given a remarkable reprieve by Tom Goodwin and Goodwin & Goodwin,” the judge said. “It’s simply remarkable that they turned the other cheek.”
Copenhaver added that he was concerned over a memo from the adult probation department that reported Coleman had written two worthless checks since his termination from his former firm.
Coleman filed for bankruptcy in September 2007, listing assets of $234,725 and liabilities of $1,226,321.
Note: I wonder if the victims of Mr. Coleman will turn to his former law firm for restitution since they knew about his tendency to steal client and firm money? They should have turned him in the first time. However, it seems the judge praised them for being so generous to him. Maybe a civil jury would see things differently. – John H. Bryan, West Virginia criminal defense attorney.
From the Register-Herald today:
Plea rejected for woman accused of robbery
A plea hearing went awry Wednesday when the defendant admitted to Raleigh County Circuit Judge H.L. Kirkpatrick she was only taking the plea because she wanted to go home, not because she thought she had done anything wrong.
Bridget Rene Sizemore, 33, of Beckley, was expected to plead guilty to first-degree robbery in connection with a March 31, 2006, incident during which she allegedly broke into a Bolt residence and attempted to steal a woman’s purse at knifepoint.
At the time of the alleged crime, Sizemore was on probation for a forgery conviction. By entering a guilty plea Tuesday, Sizemore would have been sentenced to probation for the robbery and her probation for forgery would have been revoked with the underlying sentence of one to 10 years reinstated.
Sizemore, who said she was under the influence of drugs at the time of the incident, did admit to grabbing the victim’s purse but said she was not trying to rob her.
Kirkpatrick told Sizemore he could not accept the plea and told her he believed “it would be best to just set the matter for trial.”
Sizemore was returned to jail and a trial date will be set.
Note: Defendants are forced to take plea agreements all the time despite their claim of innocence. The issue isn’t always is the person “guilty” or “innocent.” There are books and books full of technical crimes. A person could be charged with two or three different crimes for doing the same thing, just depending on what kind of mood the prosecutor was in. One crime could bring a sentence of up to one year in jail… the other crime could carry ten to twenty years in prison – mandatory. Thus, in this woman’s situation, she may not have actually “robbed” the lady, but the State may have a statement from her whereby the police officers carefully got her to unknowingly admit to each and every element of robbery, thus ensuring her conviction of “robbery” rather than simple larceny, which would be a misdemeanor. The point is, that nobody cares about her motives for pleading to a lesser unless the defendant states something in open court that could bring problems if the case ever crossed the bench of an appellate court. – John H. Bryan, West Virginia criminal defense attorney.
From today’s Register-Herald:
Senator is seeking judgeship in Greenbrier County
Mannix Porterfield – Register-Herald Reporter
CHARLESTON — Midway into his second Senate term, Jesse Guills decided Tuesday to gun for higher office, that of circuit judge in the 11th Circuit of Greenbrier and Pocahontas counties.
Elected initially in 2002 in the 10th District, the Republican senator won re-election two years ago and has two years remaining in this term.
“If I’m fortunate enough to win, I will have to give it up,” he reflected after the floor session.
“But they have been six good years. I think we’ve done a lot, certainly in the six years I have been here. I would regret that (leaving) to one degree, but on the other hand, my profession is practicing law. And it’s the ultimate goal of most practitioners of law to be able to serve on the bench.”
Guills filed for the Division I judgeship now held by Judge Joseph Pomponio, named last year to succeed Judge Frank Jolliffe, who retired.
The Division II position is held by Judge James Rowe.
“I believe my experience in practicing law and really the experience I’ve gained through the legislative process have enabled me to be a quality candidate for that position,” Guills said.
Pomponio is seeking a full term in the post, and a third candidate in the race is Steve Hunter, a practicing attorney in Lewisburg. Guills is the lone Republican candidate at this stage.
Guills has been an attorney since 1971, handling civil and criminal cases. He is a charter member of the West Virginia Chapter of the American Board of Trial Advocates.
“I’ve done pretty much all areas of law, including juveniles,” he said.
In the Senate, he has served on the finance, education and health and human resources committees.
Outside the Legislature, he also has seen public duty by serving on the Greenbrier County Airport Authority, where he was chairman in 1998.
Guills earned a B.S. degree in business administration and his law degree at West Virginia University and is the father of two children, Amy and Patrick.
“I will miss the friendship and people that I’ve met down here,” he said of his Senate tenure, if he succeeds in winning the judgeship.
“I will miss voting and continuing to be involved in the politics of this state.”
Note: I still to this day can’t understand why we would want a judge to campaign for office as a partisan politician. Should there be a difference between a Republican and Democrat judge? I would hope not. But, people need to keep in mind that this is probably one of the most important races they will vote on. In West Virginia, we unfortunately have no intermediate appellate court. Thus, it is very, very, very important to get good decisions at the trial level. Furthermore, we need commitments from these candidates that they will uphold the constitutional rights of the people and that they will not be an appendage of the office of the Prosecuting Attorney. – John H. Bryan, West Virginia criminal defense attorney.
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