This is my 300th post, and unfortunately a sad one.
I was disappointed to see in the Charleston Gazette this morning that the federal courthouse in Parkersburg, West Virginia is closing up shop. I think I tried the last jury trial ever in that courthouse, which was the first trial there in around three years, if I recall correctly. The article says something to the effect that it couldn’t keep up with modern technology. Actually, we used all the modern technology which you would expect in a modern-day jury trial, including “ELMO” machines and video footage. They did have to bring the devices from Charleston for the trial – which was not a big deal.
One piece of modern technology which didn’t work there however, was the mute button on Judge Goodwin’s microphone. So he told the jurors to loudly talk amongst themselves whenever he said “beep” so that we could have side bar conferences. It worked amazingly well – in fact probably much better than a mute button. And everyone got a kick out of it.
The last day is this Friday. R.I.P. Parkersburg Federal Courthouse.
There was a nice article on the front page of the Charleston Gazette this morning about the Sawyer Case.
“Today the citizens of West Virginia, Maryland, Virginia North Carolina and South Carolina have more constitutional protections than they did yesterday,” John Bryan, Sawyer’s attorney, wrote in a statement.
“As a result of today’s ruling, which affirmed the District Court for the Southern District of West Virginia, law enforcement officers will be taught to treat people differently, and that if they fail to do so, there will be consequences. Because of Brian Sawyer, and the federal court system, millions of people have more freedom. And that is something I am very proud of.”
There was also an article in the Parkersburg newspaper:
Well, off to another trial this morning.
ETA: We won the property dispute trial. We have been very blessed to have streak of wins in WV state-law easement disputes. Although they might seem boring, they are quickly becoming one of my favorite types of cases, second only to civil rights cases. I do enjoy interesting criminal cases. However, I do not enjoy the stress of gambling with someone’s liberty. I much rather prefer property rights or money. The worse case scenario is never the end-of-the-world.
Also an article in the WV Record:
We won the Sawyer case at the U.S. Court of Appeals for the Fourth Circuit. The audio from the oral arguments is one post down. Here is the opinion. I have been unable to discuss the case for about a year. Obviously, this is what has been happening. I believe this is, and will be, a very important decision. Although there was no new law created, this has greatly clarified, explained, and set the course, for future excessive force litigation and instruction.
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.
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