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.
We just finished a civil jury trial in southern West Virginia and came through with yet another unanimous verdict in our favor. One interesting side note: there was one witness who was unavailable to appear due to health reasons, so his deposition was read to the jury. You would think this would bore them to death. But in reality it was halarious because the judge’s court reporter was playing the witness’ part and we had to act it out. Given that the guy repeatedly accosted me verbally in the deposition, it had the jury laughing much of the time.
We left off at Improv Rule I, which refers to improvisational theater. The rule is, “no scripts.” If you follow your outline of questions, you are going to get outlined answers. Voir dire should have the flow of a conversation – a real one.
And then there is Improv Rule II, which also derives it’s name from improvisational theater. He’s says that the rule is to “not block,” which means that if your partner at the improv, i.e., a prospective juror, brings up a topic to discuss, don’t ignore that topic or switch to another which is more comfortable for you. This is how a conversation, and also voir dire, should work.
Rule 8 is the Shrink Rule. Rather than just confirming by silence that the prospective jurors agree with the points of view, legalities, or issues as you/the court see them, ask the jurors openly, how they feel about any particular issue or idea, and let them answer.
Rule 9 is the Beer Pong Rule. ”The ball is always in play. If the ball hits the floor, ceiling, wall or even leaves the room it can still be, and should be, hit back in the direction of the table.” Comments, issues and questions, should be forwarded from one prospective juror to another, i.e., “who disagrees with Mr. Jones.
Rule 10 is the Marathon Rule: save something for the end. This is something that should be utilized also in cross examinations. In cross examinations, you always want to have one final question – one completely unobjectionable (you never want to end a cross by sitting down on a sustained objection), hard-hitting, no-way-out, glance-at-the-jury -as-you-are-sitting-down-triumphantly-question. That way, no matter how the cross examination goes, you end on a high note, and it is never awkward. The cross may have been a disaster, but if you end with your ace-in-the-hole question, you leave off on a high-note. It’s a great idea to also have one of those for voir dire. Bennett suggests something like, “raise your hand if you promise to give [client] a fair shake,” or “can we all agree to wait till all the evidence is in before deciding this case?”
Rule 11 is the Playing Doctor Rule: I’ll show you mine if you show me yours. If you want the jury to discuss something deep, such as prejudices (which he rightly states that we all have – including lawyers and jurors) we have to be willing to discuss our own, such as our first thoughts when we saw our client’s tattoos – or something of that nature.
Rule 12 is the Field Trip Rule. This is about paying attention to the group dynamics that develop between these strangers who are forced together, such as on a field trip. And also it is about becoming a part of the group, and allowing these dynamics to steer the conversation of voir dire.
Rule 13 is the Undertow Rule. It’s not possible for one person to keep up with all of the prospective jurors, whether there are 30 of them or 60 of them. You have to have an assistant, or another lawyer, to help you keep track of what is going on. It literally is impossible to do this yourself, and is foolish. Of course, as Bennett notes, your client can help you, and indeed should have a say in the process, but that is questionable help given the circumstances. Once the process starts, it goes quickly in my experience. And it takes at least one person full-time to mark down names and particular answers which need to be followed up on during individual voir dire – if the jurisdiction allows. It also helps to know the exact layout in which jurors will be seated, in order to develop some type of diagram to aid your assistant, and yourself when it comes time to make the tough decisions. It can be different from judge to judge.
Rule 14 is the Atticus Finch Rule: be the lawyer they want to stand up for. This refers to the scene in To Kill a Mockingbird where the African Americans stand up for lawyer Atticus Finch as he walks out of the courtroom – not because he won, but because he was a good man. I have said this before. There are a lot of jerk lawyers out there. Jurors pick up on these things, and they naturally, I believe, will lean towards those who they respect. And they don’t respect the jerks.
Rule 15 is the Bat Rule: ping, then listen, or fail. I other words, ask questions and then listen to the answers. Obviously this is the foundation of being a trial lawyer. But it can be easy to rattle off questions without really listening to what is being said. It takes conscious effort at listening and absorbing the answers to lead the conversation, rather than just your questions.
And lastly, the Herd Rule. A jury pool is like a herd of animals. This can always be taken into account when asking questions. People don’t want to separate from the rest of the group. They are more likely to raise their hand or speak up if you ask “how many of you agree with [prospective juror] about [issue]?” and are less likely to respond to “do any of you believe [issue].” Always remember the Herd.
Thanks again to Mark Bennett for coming up with these great rules. He reminds me of the bar exam instructors, who teach things in terms of little stories and songs so that you can remember them during the test. It certainly is helpful to be able to quickly review these before voir dire.
- John H. Bryan, West Virginia Attorney.
When Mark Bennett announced a week or so ago that he had 16 simple rules for jury selection, the first of which began with “The Nike Rule,” I anxiously awaited the specifics which were to arrive subsequently. Well, he did post the details on “The Nike Rule,” which essentially is this:
You have to “just do it,” rather than planning out your questions or taking an overly logistical or tactical approach to it.
Don’t worry, don’t think about it, don’t plan your next question. Forget your script, forget the prosecutor, forget the judge, and talk with the people. The time for worrying and thinking and planning, for scripts and prosecutors and judges, is past. There is nothing more that you can do to be prepared for this moment.
I have found that I perform best in a criminal jury trial when I do this throughout the trial. Rather than be overly logistical, I like to listen, and then when it is my turn to question a witness, or to give a closing argument, I just get up and let the words flow. I think it is the most sincere and passionate way to advocate. And sincerity and passion breeds results – at least in my opinion. But of course, you can only do this when you are intimately knowledgeable about the facts of the case.
Certainly I agree that this approach is the best way to conduct the voir dire process. When trying a jury trial, credibility is king, and if from the beginning you have to get the jurors to, not necessarily like you, but to respect what you say. You have to build and maintain your credibility with them. The best way to do that is to start the trial off by talking to them for just about as long as the judge will let you, and educating them about the process and the ultimate importance of their immediate responsibilities. And if you can make them laugh a couple of times it doesn’t hurt. This is especially effective in those situations where the prosecutor stands up and says, “no questions, judge,” and let’s the defense do all the talking, which for some reason I have encountered several times. This has always baffled me. Why wouldn’t you want to at least build a rapport with the jury?
Hopefully the outcome is that you get to know them better, and they get to know you. Then you have something to go off of when it comes down to the choice between juror no. 5 and juror no. 9, which may seem arbitrary, but which also may mean the difference between liberty and imprisonment for your client.
I look forward to hearing what Mark’s second rule, “The Blind Date Rule,” is.
UPDATE: “The Blind Date Rule” has now been posted.
Essentially the advice is to treat jury selection like a blind date with 60 people (or unfortunately, in West Virginia, more like 38 to 40 people). Bennett explains his thinking:
Someone, thinking they might be a match, has put two parties in a room together. One party—the lawyer—has some desire to be there. The lawyer has some idea of a desired outcome (I know, I know: I’m a hopeless romantic). Neither party knows much about the other. The lawyer wants to learn about each juror (to find out if he or she is a suitable mate) while persuading him or her that the lawyer is likable, and thus a suitable match as well.
It’s always extremely interesting to get advice from another criminal defense attorney who actually tries cases and wins – at least some of the time (no real criminal defense lawyer wins all the time). There is a right way (or rather many different right ways) and a wrong way to try a criminal case. Many would argue that jury selection is the most important part of the case. It’s also the most unpredictable part, and the most likely part to absolutely blow up in your face. But it works the other way as well, and you can really achieve a lot for your client.
It seems to me that the trick always is creating some sort of connection between yourself and the jury, and actually getting the point where you can have a conversation with them. During most of the trial, the conversation is mostly indirect and one-way. But during jury selection, you can have a two-way conversation, and it makes sense that it is just like any conversation you have outside the courtroom.
I like the way of looking at it like a blind date. Not that I have ever been on a blind date, but I assume that you walk a fine line between cutting the tension and breeding contempt. I also suppose that some lawyers, like many in the blind-dating world, no matter how hard they try, are just always going to be awful at this…. Again, I love it when people share advice on how they have won criminal jury trials in the past.
UPDATE – 8/24/09:
The Shrek rule for jury selection, now explained, makes sense. Though it befuddles me to imagine how he thought of this, other than if it was on his mind as he was watching Shrek… I think that one of the by-products of being a trial lawyer, is that your mind never stops analyzing issues related to pending cases – for better or worse – usually worse. I know that I would pay any amount of money for a switch that turned off lawyer-related thoughts from passing through my brain the moment I stepped out of my office for the day But it will never happen. Nevertheless, the gist of the rule comes from this scene in Shrek:
[They are walking through the forest and Shrek belches....]
What? It’s a compliment. Better out than in, I always say. (laughs)
Well, It’s now way to behave in front of a princess.
[Then, Fiona belches.]
Bennett notes that:
The Shrek Rule dictates that the lawyer should, rather than trying to shut up (or, God forbid, not listen to) the people who have views that would be unhelpful in jurors, draw those people out and encourage them to share and expand upon their views.
How? Listen attentively (and actively, Dr. SunWolf), thank them, and ask how many others agree. The more people agree with him, the better: better out than in.
It’s always an odd moment in jury selection when one prospective juror says, “yeah I know the defendant, and he’s a no good piece of garbage like the rest of his family, and I fear for my children unless he’s locked away for good.” You could probably write a book on the proper reaction to that happening. But better during voir dire than in the jury room. I have experienced a case where almost that exact phrase was said for the first time during jury deliberations, and only after the verdict did the defense lawyers find out about it. Of course, when this particular juror was asked by the judge whether he knew the defendant, he never spoke up. But that is another issue itself. At least when you get that out of him during jury selection, you have the opportunity to (1) get the guy excused for cause; and (2) rehabilitate your client by exposing the source of the guy’s animosity as incredible and irrelevant. And, as a bonus, you may get others to agree with him and get them off as well.
The 4th Rule is the 90/10 Rule, which basically means listen 90% of the time and talk only 10%. This is probably the easiest rule to remember, yet the most difficult to accomplish. In my experience, it can get surprisingly difficult to get people talking – especially when things turn personal.
Bennett has now also posted his 5th Rule, the MacCarthy Rule, named after a Chicago public defender who said “talk in a courtroom like you would talk in a bar room.” In short, don’t use “lawyerly” words and don’t condescend to the jury panel. Or else, they get to burn you in the end. This seems to be a corollary to the “be a nice person” rule, which I would add to the list. We all know people who are nice people, and we all know jerks – whether they realize we know or not. I believe that being a sincerely nice and friendly person will help the jurors like and trust you, while, like the rest of us, they will see through a facade of friendliness put before them by a world class jerk. And we usually like to help those we like, and we generally don’t mind sticking it to those we think are jerks.
- John H. Bryan, West Virginia Attorney.
The job of being a criminal defense attorney is a difficult one, and more so because you are constantly contradicting and questioning the testimony of police officers. Oftentimes it’s a losing battle, because most jurors are reluctant to believe that a cop would lie – or even exaggerate. But the tables turn in the rare instances when cops are charged with civil rights violations.
Bobby Frederick at the South Carolina Criminal Defense Blog had been covering the criminal trial of SC Trooper Steve Garren, who was basically caught red handed by his dash cam of swerving to hit a fleeing pedestrian suspect, all-the-while claiming “yeah, I hit him. I was trying to hit him.”
Despite this video evidence, replete with an audio admission, the jury found him not guilty. Now I have no idea what happened at the trial or in the jury deliberations, but the fact that this guy was a state trooper was the 800 pound gorilla in the courtroom. Certainly this would have been evidence beyond a reasonable doubt to a jury if we were talking about a civilian defendant. But jurors will give police officers a huge benefit of the doubt – whether it be with respect to weighing credibility against the defendant, or with respect to the rare instances where law enforcement officers are actually held to task for committing a crime.
These are one of the rare, rare situations where a jury will ever give a criminal defendant the benefit of doubt – including possibly acquitting him despite their belief that he was guilty. The jurors may have thought, yeah he did it, but the guy he hit deserved it, he shouldn’t have been fleeing.
– John H. Bryan, West Virginia Attorney
After about an hour and a half of deliberations on Friday, my Greenbrier County jury came back against my client in a civil jury trial. I really thought we had a good chance of winning. But such is the character of civil juries. In civil cases, you never really know what the jury is going to do. They are unpredictable. They could go either way based on something that both sides never even thought was important. On the other hand, in criminal cases, the jury 90% of the time is going to convict. That is what you can expect. Your struggle is one of the underdog.
There was something unique about this jury though – it had a criminal defense attorney on it. Usually it is a bad idea to leave a lawyer on a jury, and it may have been this time. I made a gut decision to leave him on based on a subtle nuance of the law that I thought he would understand and explain to the other jurors. But I suppose that is a two-way street. And then again, it could have been some fatal flaw in my client’s factual case that swung the jury. The fact is, you never really know.
There is no second place, but it is always good to know that in this situation your client is satisfied that you did the best that possibly could have been done given the circumstances. Sometimes you are just backed into a corner, and in this case, there was no possibility of settlement, so it was just up to the jury. And good or bad, you usually just have to live with the jury’s decision.
– John H. Bryan, West Virginia Attorney.
Although this was in Australia, what would any government expect when you make jurors sit for a trial for 66 days? What kind of crime is worth spending a million dollars to prosecute? Drug conspiracy? If as the prosecutor, you reach day 66 of your drug conspiracy trial, you have officially bored the hell out of the jurors – not to mention put them out of business and caused their families to lose their home in foreclosure. Who can afford two months of jury duty?
You can 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 Daily Mail:
A Montcalm High School teacher accused of having a relationship with a student faces sexual abuse and abduction charges.
State Police First Sgt. Gary Tincher says 30-year-old Christi Lee Williams was arrested in late April.
Williams remains free on bond after being charged with sexual abuse by a parent, custodian and guardian and abduction of a student within 1,000 feet of a school.
Tincher says Williams is accused of having a relationship with a 16-year-old male student who allegedly left school property with her.
Tincher says the teacher has been suspended from her job.
What is the deal with young, attractive teachers across the country having these sexual relationships with young boys? I can’t remember hearing anything like this when I was in high school – other than in a Van Halen song.
Let’s look at the charges: First, abduction of a student within 1,000 feet of a school. Okay, that charge is garbage. The kid was 16 – old enough to drive, and actually 16 is the age of consent. The allegations are that he went willingly. Prosecutors and legislators can make up whatever law and charges they want, but the fact is that there was no abduction. This is just a garbage charge to help them get a plea.
Secondly, sexual abuse by a parent guardian or custodian. This is the most abused and misused charge on the books. The reason is this: in almost every situation, like it or not, the legal age of consent in West Virginia is 16 years old. That means that ignoring relationships, this 16 year old kid can have sexual relations with whomever he wants. However, if there is a relationship, then all of a sudden the other party goes to prison for 10 to 20 years. That’s right, that is the punishment for this charge (something that you are not allowed to tell the jury). So, if the prosecutor alleges the other party is a babysitter, teacher, whatever – even if the kid is 16 or 17 and has his own car and drives all over the place, it then becomes punishable by 10 to 20 years. This is an abuse of the law. The charge was meant to cover awful situations where parents or actual guardians abuse children under their care. The problem is that the statute was written much to broadly, thus allowing police and prosectors to abuse it. For instance, this woman is facing 10 to 20 on that charge. Under the statute, technically, she can be convicted on it. The jury never gets to know that she will get 10 to 20. They will assume she will get probation, or maybe 6 months or a year. She will get convicted on the charge, despite the unfairness of it. The end result is, that her lawyer will most likely advise her not to take the chance of going to trial, and to accept the plea offer of misdemeanor battery with a sexual motivation, or something like that, which will put her in jail for a year and make her a registered sex offender for life.
Read the full article here.
– John H. Bryan, West Virginia Attorney.
From the Register-Herald today:
Its no big surprise that after just under two hours of deliberations, the jury of seven women and five men found Gary D. Martin, 57, of Stringtown Road, guilty of two counts of first-degree murder and one count of second-degree murder.
Obviously the jury didn’t buy the self defense argument. However, they did find Martin guilty of second-degree murder for killing the victim that had the gun in the holster. Thus, the jury was not convinced beyond a reasonable doubt that Martin killed that particular victim with premeditation. They were convinced with respect to the other two victims however.
This result is no surprise given the evidence. However, I was surprised to read what Fayette County Prsoecutor Carl Harris “thundered” in his closing argument. The Register-Herald quoted him saying as follows:
“Only two people are alive at the end of that day because the other three are dead,” Harris thundered in closing arguments. “This is a weapon for killing,” he added, holding up the AK-47. “This is not a weapon for target practice. This is a military weapon. You don’t pull out a pistol when you’re facing a weapon like this. Self-defense (as a legal defense) doesn’t work when you shoot someone in the back.”
According to Carl Harris, an AK-47 is only a “weapon for killing” and cannot be used for target practice as it is purely a “military weapon.” Carl Harris should be ashamed of himself. Law-abiding citizens across the State of West Virginia own so-called “assault weapons” such as AK-47s and AR-15s, which they do use for target practice, self defense, or just to collect. It is just a semi-automatic rifle, similar to many others that West Virginians and other Americans own and use across the country every single day. Attention Fayette County residents: hide your guns because Carl Harris is probably looking to prosecute you for harboring “weapons for killing.” Don’t try to get some target practice in, you may end up in prison. Carl Harris needs to realize that it is perfectly legal to own that particular gun, as well as many others, and he needs to keep his anti-gun feelings to himself, and out of the courtroom.
Read the full article here.
– John H. Bryan, West Virginia Attorney.
From the Register-Herald today:
Fayette County prosecutors presented 16 witnesses Monday and explained that they plan to call just one more today in the triple-murder trial of a Hico area man accused of gunning down three young men with an AK-47 semi-automatic rifle last Memorial Day on the road in front of his home.
Gary D. Martin, 57, of Stringtown Road, is charged with three counts of first-degree murder in the May 28 shooting deaths of Dustin Tyler Hughes, 22, of Hico, Christopher Lee Legg, 23, of Hico, and Carl Blaine Cox Jr., 24, of Edmond.
The defense is claiming that since a Glock pistol in a holster was found one one of the victims, that the shootings were justifiable homicide – or self defense. However, there are some problems with that defense; namely, that the pistol was found shot and damaged with the holster. The article doesn’t say whether the gun was actually still in the holster or not. If it was, then self defense would be a tough row to hoe. If the gun was not in the holster, then self defense would be an easier case. Reportedly, there were seven rounds in the magazine, which holds nine. So it is possible that the victim shot two rounds. However, none were found at the scene (but that still doesn’t mean they weren’t there). I wonder if they tested the Glock for gunshot residue – or the victim’s hands for gunshot residue. That could prove almost conclusively whether or not he fired a gun. I would hit hard on that if I were one of the defense attorneys. You will see a pattern of sloppy investigative work and repeated failure by the State to do all of the forensic testing or evidence collection that could have been done. Your theory almost has to be that it was self defense, and the State cannot prove beyond a reasonable doubt that it was not self defense, because they failed to do all of the testing that could have proven it.
Of course, all of this is assuming you have a fair and impartial jury. See my earlier posts regarding motions for change of venue. This would have been a good case for one.
Another problem with the defense is that there were three victims shot to death. Even if one of the victims had threatened or shot at the defendant, it would not have been justifiable to shoot all three to death. Yet another problem is the statements made to the passing motorists and EMT workers afterwards.
You can read the full article here.
– John H. Bryan, West Virginia Attorney.
You know times are getting tough when society’s derelicts stop burglarizing homes and robbing gas stations and begin stealing catalytic converters off of cars and electrocuting themselves trying to get copper wire off power lines.
Actually, from the incessant loud vehicles driving throughout some ares of West Virginia, I wasn’t aware that there were that many cars around that still had catalytic converters. It must be a right-of-passage for many high school sophomores or juniors to buy a 90′s model Mustang or F-150, and take off the muffler and catalytic converter, to therefore make it excruciatingly annoying to everyone else around them. Then, once they are off, they are pretty much off for good.
In the Register-Herald today, there was a story that police have arrested five members of a catalytic converter theft ring. Their names were Billy Jack Smith, 23, of Midway, Billy Price, 25, of Coal City, Nicholas Dale Bragg, 21, of Beckley, and Jeremy Allen Sanger, 25, of Hilltop.
They were charged with grand larceny, which is basically stealing something worth more than $1,000. What is the value of a catalytic converter? Are they basing the value of the catalytic converters on their black market value? Their individual prices if bought as new? The cost for buying a new one and installing it on the victim’s vehicle? That may be a jury issue. If either of the defendants can convince the jury that, although they stole the converters, the value was under $1,000, they would only be convicted of misdemeanors.
Read the full article here.
– John H. Bryan, West Virginia Attorney.
Yesterday Richard Workman, 40, of Summersville, West Virginia, was acquitted on charges of first-degree sexual abuse and sexual abuse by a parent guardian or custodian after a jury trial. The jury deliberated less than an hour before returning the not guilty verdict.
Reportedly, there was no physical evidence corroborating the testimony of the alleged victim. The alleged victim, who testified, was ten years-old. Assistant prosecutor Kelly Hamon said during closing arguments the girl had no reason to lie or to make up a story about Workman. Hamon also said Workman had two years to work on his story and was unable to testify without the aid of a written time line.
These are the most frightening cases imaginable. These charges will put people in prison for the same amount of time as first or second degree murder. However, unlike murder cases, the State does not collect a large amount of evidence. Prosecutors often rely solely on the testimony of alleged victims. The problem is, that without corroborating evidence, how can that be evidence beyond a reasonable doubt? Prosecutors like to rely on the argument that the alleged victim “had no reason to lie or to make up a story” about the defendant. The fact is, that it has been documented time and time again that some children will lie and make things up. Does it matter why they are doing it? No, it only matters that they could be making it up and there is no corroborating evidence.
In these types of cases (in West Virginia), the defense can give a special instruction to the jury – called a “Perry Instruction” informing the jury that if they believe that the testimony of the alleged victim is uncorroborated, they should scrutinize that testimony with “care and caution.”
This case is very similar to a case that I tried earlier this month, after which my client was also found not guilty. People don’t realize that in order to be found “not guilty,” all 12 jurors have to unanimously return a verdict of “not guilty.” Needless to say, it can be very difficult to get 12 people to agree on anything. The goal of the defense attorney in these cases is to pound into the jurors’ heads the fact that the prosecution has the burden of proof to prove the defendant guilty “beyond a reasonable doubt.” This is not always an easy job, because jurors want to listen to the alleged victim testify, and then listen to the defendant testify (which, by the way, the defendant almost always has to testify in these cases) and then compare the two. They tend to choose the one they most believe. Their duty, however, is to compare the alleged victim’s testimony and the state’s lack of evidence against the “reasonable doubt” standard – which in reality should be a difficult burden for the state.
However, for every acquittal, there are probably several others who are wrongfully convicted on evidence that was far less than a “reasonable doubt.”
Read the entire article from the Register-Herald here.
– John H. Bryan, West Virginia Attorney.
From today’s Register-Herald:
Greenbrier jury says no to felony charge for deputy
LEWISBURG — After meeting nearly six hours Tuesday, a special grand jury rejected two possible felony indictments against a Greenbrier County sheriff’s deputy accused of severely beating Prosecutor Kevin Hanson and instead returned a true bill on a less serious misdemeanor charge of battery.
Deputy Kevin Lee Sawyers, 37, now faces the same charge originally filed against him last August before State Police upgraded the misdemeanor to a felony charge of unlawful wounding, defense lawyer Tom Czarnik said.
“The special grand jury rejected the more serious felony charges of malicious wounding and unlawful wounding,” Czarnik said afterward. “I will be asking for an early trial for my client before the May 13 primary.”
Sawyers was charged with battery after allegedly beating Hanson for more than four minutes in the driveway of his estranged wife’s Lewisburg home. Sawyers, a seven-year deputy who returned home last year after serving in Iraq, had previously filed for divorce from his wife, Amy Sawyers, who is employed as a legal assistant for Hanson.
Hanson said in September that he was at the house to pick up a dog to care for it over the weekend. He said he did not start the fight.
He spent several days in a local hospital recovering from his injuries, which included a broken nose, separated shoulder, bruises and lacerations, according to police.
Hanson, who first won office in 2001, is currently campaigning for re-election.
Special prosecutor Dan Dotson of Braxton County said Tuesday the misdemeanor trial for Sawyers will now likely go forward despite the setback on the felony charge.
The grand jury also rejected a misdemeanor simple assault charge against Sawyers, which carries the lightest possible sentence, he said.
“Do I agree with the decision? Probably not. But I respect the decision the special grand jury made today,” Dotson said. “The matter will likely go to trial now because he really doesn’t have anything to lose.”
While grand jury proceedings are private, Dotson did comment when asked why the special panel was out for such a lengthy period of time.
“Because of the nature of both the victim and the defendant, this was not a typical special grand jury. There were a lot of facts that were diametrically opposed and also a bunch of side issues that are not normally present,” Dotson said. “I did not want to be accused of not wanting to put everything there was about the case out there in the open.”
After Chief Circuit Judge James J. Rowe announced the decision of the nine-woman, six-man special grand jury in open court, the defendant was called to the front of the courtroom.
“I would like to proceed with the arraignment, but because of the nature of the alleged victim (Hanson), it is inappropriate for me to do so,” Rowe said.
Rowe said he will ask the state Supreme Court to appoint a special judge to hear the case.
Sawyers has been on paid administrative leave since his arrest.
Sheriff Roger Sheppard said a battery charge or conviction would not make Sawyer ineligible for duty as a deputy, but another legal problem could preclude him from coming back on the force.
“He’s still under a protective order and can’t possess a firearm,” Sheppard said. “That’s now the big hold-up before bringing him back on the force.”
Court records indicated Amy Sawyers filed a domestic protective order against Kevin Sawyers shortly after the August incident. She was present during the alleged fight, but no charges were filed against Kevin Sawyers in regard to her.
Czarnik said he was ready to “try this case tomorrow,” and looks forward to a jury trial.
“The felony charges could not be won,” he said. “And I don’t expect anyone to win the next one, either.”
Sawyers remains free on $2,500 bond and faces up to a year in jail if convicted.
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: email@example.com
From today’s Beckley Register-Herald:
Special jury called for prosecutor beating
By Christian Giggenbach
LEWISBURG — A Greenbrier County judge has ordered a special grand jury to convene next month to decide if a sheriff’s deputy will be indicted for allegedly beating county prosecutor Kevin Hanson last year during a front yard altercation.
Special prosecutor Dan Dotson of Braxton County filed a motion in circuit court last week and Judge James J. Rowe issued the order Friday for a special grand jury to convene March 18. The order also states that no member of the February grand jury, which meets today, may be called for the special grand jury.
Dotson said a special grand jury was necessary because the victim in the case, Hanson, presents evidence for indictments to the regular county grand jury.
Deputy Kevin Sawyers, a seven-year veteran of the Greenbrier County Sheriff’s department, has been charged by State Police with unlawful wounding stemming from an altercation with Hanson last August.
Dotson said up to 25 citizens may be called upon to comprise the 16-person jury. At least 12 jurors must vote that probable cause exists that a crime has been committed in order to “return a true bill” or indictment.
“The people that will hear the case must not have any ties to the recent grand jury,” Dotson said by phone Monday.
Names for grand jury lists come from DMV and tax records, as well as voting registration lists, Dotson said.
During a grand jury, prosecutors normally question the arresting officer and present evidence about the alleged crime. Rules of evidence are not followed and hearsay is allowed during a grand jury.
The accused may also testify in front of a grand jury, which is rare, but it must be done outside the presence of his or her lawyer. Judges give instructions to grand juries about the elements of a crime, but are not present during any questioning.
In September, a misdemeanor battery charge was upgraded to the felony charge of unlawful wounding against Sawyers.
Hanson, the county’s prosecutor since 2001, spent several days in a local hospital recovering from his injuries. He has not been charged in the incident.
Dotson said Hanson suffered a broken nose, separated shoulder, bruises, swelling, lacerations and abrasion from Sawyers’ attack.
The criminal complaint filed by Princeton State Trooper Sgt. M.R. Crowder states Sawyers, 37, “arrived at his estranged wife’s residence” on Aug. 2 and found Hanson “in the driveway area.”
Sawyers had previously filed for divorce from his wife, who is employed as a legal assistant at the county prosecutor’s office.
Sawyers’ defense attorney, Tom Czarnik, could not be reached for comment Monday. Sawyers remains free on $2,500 bond and was placed on paid administrative leave from his job pending the resolution of his charges.
If convicted, Sawyers faces a maximum prison sentence of five years.
Note: My guess would be that this case will go to trial – before a jury. A couple of things to point out: here you have a 7-year veteran of the Sheriff’s Department beating up the elected prosecutor. He was initially charged with misdemeanor battery, but the charges were upgraded to a felony after a “special” prosecutor was brought in on the case. Much like cops, prosecutors don’t take too kindly to one of their own getting attacked. You have to wonder if the everyday bar fight – albeit with injuries requiring hospitalization – brings a felony charge. I haven’t seen very many of those. Misdemeanor battery will probably be offered as a plea, but if he takes it he surely will lose his job. Thus, I think this case will go to trial. Historically, the husband-beats-up-other-man-with-wife defense has faired pretty well before juries – even in murder cases. Furthermore, this defendant is an Iraq war veteran, and probably a pretty sympathetic guy. I give him a good shot at being acquitted. – John H. Bryan, West Virginia criminal defense attorney.
From today’s Charleston Daily Mail:
Jurors find Michael Merrifield guilty
by Cheryl Caswell
Daily Mail staff
WINFIELD – After little more than one day of deliberations, a jury has found Michael Merrifield guilty of the murder of 2-year-old Logan Goodall.
They also found Merrifield, 32, guilty of causing the death of a child as a parent or guardian and guilty of sexual abuse by a parent or guardian. They found him not guilty of first-degree sexual assault.
Jurors did not recommend mercy, so the first-degree murder charge carries a life sentence.
Watch video of the verdict being read here
An attorney for Michael Merrifield had told jurors during his closing argument that other people should have been suspects in the 2005 death of the Putnam County toddler.
Ed Rebrook, who along with Mike Clifford has represented Merrifield in his first-degree murder trial, implored jurors to remember there was no direct evidence to link Merrifield with the child’s injuries or death.
And Rebrook again raised the question he has brought up several times during the trial – that Michael’s brother was suspect.
“Where was Patrick Merrifield?” Rebrook asked. “We know he had access to the child. He refused to testify. You have (Logan’s mother) Pepper Eren, you have Michael Merrifield and you have Patrick Merrifield.
“All three suspects were in the house in the time range the physicians have given us for when death occurred.”
Three witnesses, including another medical examiner called in by the state Wednesday, said Logan bled to death from a liver laceration and it could have taken several hours.
“The state wants you through a process of elimination to see that Michael Merrifield did it,” Rebrook said. “That is not what you agreed to do when you agreed to serve on this jury.”
The jury began deliberating Wednesday and continued today.
Conspicuously absent from the courtroom Wednesday for closing arguments were the defendant’s parents, Dr. John and Diane Merrifield, who have sat directly behind their son for the entire trial in Putnam Circuit Court.
The Merrifields were believed to be with Patrick, who reportedly had been admitted to Charleston Area Medical Center.
An operator at CAMC said no information could be given out about Patrick Merrifield. His attorney, Jim Cagle, also would not answer questions.
Patrick was subpoenaed by the defense but invoked his Fifth Amendment right not to testify because he didn’t want to incriminate himself.
Frequently during the trial, the defense had pointed out that Logan, while in the care of Michael Merrifield, also spent a lot of time with Patrick.
In his closing statements, Putnam County Prosecutor Mark Sorsaia asked the jury to find Michael guilty and grant him no mercy.
The former boyfriend of Logan’s mother, Michael is accused of sexually assaulting, abusing and killing Logan on Sept. 6, 2005.
“Do not recommend mercy,” Sorsaia said. “There is none. Don’t give it to him. This is the man who abused this child, causing his death.”
Sorsaia displayed photographs of the dead child while he spoke to jurors. Melissa Eren, the boy’s grandmother, openly wept, and many others in the courtroom cried and dabbed their eyes.
The prosecutor reiterated to the jury the many injuries the boy sustained, including multiple bruises and cuts, and told them no one else could have inflicted them. He said Michael had abused and tortured the boy for months.
“On the 6th of September his body gave up and sought refuge in death. He did not have the benefit of a loving mother or father with him, or a compassionate caregiver to help him.
“He died alone, in the presence of the man over there, who is responsible for killing him,” Sorsaia told them.
But Rebrook told jurors they couldn’t fairly jump to the conclusion that Michael abused or killed the boy. Instead, he reminded them of testimony from witnesses who said Michael loved Logan and provided care for him that his mother did not.
Sorsaia said the toddler wanted nothing but love but got only pain and hurt in his life.
“No matter how hard that little boy worked at being good, he got hurt,” he said. “Children have nothing but love to give, even when someone hurts them.”
Sorsaia reminded the jury of all the stories Michael told of how the child was injured.
“He told everyone at the hospital he loved the child, but the nurses were too smart,” Sorsaia told them. “They noticed he did not have any tears.
“All three paramedics were suspicious. The nurses were suspicious,” he said.
But Rebrook told the jury that medical professionals can jump to the wrong conclusion. He told them his wife once fell down the steps in their home and cut her head. He said he took her to the hospital and was surprised when health care professionals suspected abuse.
“They said to her, ‘He did this to you, didn’t he?’ ” Rebrook recounted.
“I tell you that to tell you in this world there is injustice,” Rebrook said.
Rebrook said that if the child was being hurt and abused, family members would have known it.
“If you hurt a child, they are going to tell someone,” he said. “If Michael Merrifield had burned that child, don’t you think the child would have told his grandparents? Don’t you think he would have said, ‘Michael did this to me?’ “
Rebrook said he thought Michael might have caused the boy’s death in his desperate attempts to revive him the day he died.
According to court records and witness statements, Michael repeatedly told police Logan had started having a seizure and he squeezed and hit him on the back to revive him.
“But I don’t think he murdered him,” Rebrook said.
“My client has been in jail for more than two years,” he said. “I ask you to set him free.”
Note: Examine the last three sentences of the article. The defense attorney posits the theory that his client may have accidentally killed the child in his attempts to resuscitate. I have heard this used before in infant abuse murder cases. This is a classic decision for a jury: is the medical evidence and other evidence in the case consistent with this theory? Evidently the jury found that it was not. The defense attorney also states after positing the theory, “But I don’t think he murdered him.” This is unique. Usually it is not appropriate for the defense attorney to give an opinion as to personal belief to the jury, only to argue on behalf of the client. But, who is going to complain? Certainly not the prosecutor, because the guy was convicted. – John H. Bryan, West Virginia criminal defense attorney.
From today’s Register-Herald:
Jury selected for accused cop killer
By Matthew Hill
A jury of seven women and five men, along with two male alternates, was impaneled Thursday for the March 10 trial of a Beckley man charged with fatally gunning down a city undercover police officer in August 2006.
The panel was seated Thursday after Raleigh County Circuit Judge H.L. Kirkpatrick started Wednesday morning with a pool of 47 potential jurors for the trial of Thomas Leftwich, 25. Leftwich is charged with one count each of first-degree murder, conspiracy and use of a firearm in connection with the Aug. 29, 2006, shooting death of Beckley Police Detective Cpl. Chuck Smith.
Kirkpatrick thanked the jurors for “going above and beyond the call of duty” in braving Thursday’s inclement weather to appear in his courtroom. He cautioned the jurors to refrain from reading, viewing or listening to media coverage of the case. Kirkpatrick added they would be individually questioned March 10 as to any media coverage to which they may have been exposed.
A motions hearing in the case is scheduled for Feb. 21. Chief deputy prosecutor Kristen Keller is heading up the prosecution, while Leftwich is represented by Logan County attorney Mark Hobbs.
Leftwich’s co-defendant, Michael E. Martin, 42, of Beckley, was convicted last month of first-degree murder and conspiracy in connection with Smith’s death in an alleged undercover drug buy that went sour.
In that case, as in Leftwich’s, a jury was selected several weeks ahead of the trial due to heavy publicity surrounding the case. Attorneys have worried that intense media coverage could make jury selection problematic.
Martin faces life in prison with no chance of parole when he is sentenced today by Kirkpatrick.
Note: This reporter is one of the same reporters that covered the Patricia Brown murder trial that I was involved in. It is always frustrating to read the newspaper every morning during a highly-publicized murder trial in that it is almost always heavily biased against your client. The sad thing is that you know jurors are probably reading the paper every morning too. Even worse than the paper is watching the evening news on TV – they are horribly, horribly biased and inaccurate. However, this particular reporter, Matthew Hill, began his stories about the Patricia Brown trial in a very biased way – see for example this article, titled “Victim named killer as she bled to death, witness says.” It makes you cringe to picture jurors waking up in the morning and taking a glance at the front page of the paper, whether they actually read the article or not. However, I think that after sitting through every witness in the trial, he began to publish articles that were more fair and balanced, see for example this article titled “Defense hints at theory in murder trial,” or this article titled “Experts testify in Brown murder trial.”
Anyways, in the above case, using the label “cop-killer” definitely is not going to help the defense if potential jurors hear that word. In their mind, they are not going to want to even consider the possibility of finding someone not guilty who has been touted in the community as being a “cop killer.” Whether he is or not is irrelevant. The point is that even defendants charged with killing cops are entitled to a fair and impartial jury. This is probably something that you will see at the trial itself. Trial lawyers like to use labels in front of juries. I’m sure the prosecution will repeatedly refer to the defendant as a “cop killer,” probably over the objection of the defense. – John H. Bryan, Attorney at Law.
- Civil Liability
- Computer Crimes
- Concealed Weapons
- Criminal Records
- Domestic Violence
- Excessive Force
- Forensic Labs
- Governmental Liability
- Grand Juries
- History Series
- John H. Bryan
- Judicial Misconduct
- Law Office Tech
- Law School
- Media Coverage
- Medical Examiners
- Money Laundering
- motions for change of venue
- Negligent Homicide
- Plea Agreements
- Police Misconduct
- Preliminary Hearings
- Pretrial Hearings
- Right to Speedy Trial
- Searches and Seizures
- Self Defense
- Sex Crimes
- Sex Offender Registration
- State Agencies
- United Bank Lawsuit
- Vehicular Crimes
- West Virginia Concealed Carry Laws
- West Virginia Gun Laws
- White Collar Crime
- Wildlife Violations