Are civil defense attorneys in WV amicably-challenged?

Of course, as a civil plaintiff’s attorney/ criminal defense attorney, I have encountered some civil defense attorneys out there who were nice people.  But it seems that more and more I encounter those who are, to be kind, “amicably-challenged.”  I’m not talking about the small-town attorneys across West Virginia who somehow get along with each other perfectly well, I’m talking about the “big city” (Charleston, WV) attorneys who think they are “God’s Gift” to the practice of law.  It’s like they don’t realize that the real big-city attorneys in D.C. and elsewhere consider them the small-town yahoo attorneys.

When I was working for the DOJ in D.C., the running joke was about attorneys like this who practice in “state courts.”  They used to laughingly read their briefs and memoranda, commenting on the poor quality.  Of course, I don’t subscribe to that type of arrogance. And I understand that, now being in the real world of the “state courts,” results – and not style or elegance – are the only thing that matter.  And sometimes a somewhat sloppy and to-the-point style can be the most effective.

I have heard it said from some of the prominent West Virginia defense attorneys who represent government agencies or officials, that other similarly-situated defense attorneys in other states have commented to them that they represent public agencies and officials, and therefore they represent the people, and therefore, they should be as transparent as possible.  This was in regards to whether or not to voluntarily hand-over sought discovery materials in civil actions against state or local government.  But the response by the West Virginia defense attorneys was, “hell no, we’re not handing over anything that we don’t have to.”  And apparently – at least according to them – they haven’t.  Not in any case.

For instance, in a prior post, I detailed one such defense attorney’s tactics of withholding important information, which landed his client sanctions in the form of attorney’s fees.  This same attorney, just yesterday, purposely noticed a deposition of my client in a county/location, which we had previously-agreed would not be the county/location of the deposition.  My last communication to him was something to the effect of, “okay, we can take the deposition on such and such dates, but due to my schedule and my client’s travel requirements, it has to be either in location A, or B, but absolutely not C.”  He said, “okay.”  The next day, I get a notice of deposition, for location C.

Why do they engage in this behavior?  Is not the public entitled to anything and everything related to government?  Certainly there is no national security interest to be protected in cases such as these.  What are they hiding?  Alan Dershowitz said that “the defendant wants to hide the truth because he’s generally guilty.  The defense attorney’s job is to make sure the jury does not arrive at that truth.”  Of course, he was talking about criminal defense attorneys, but it still rings true.  Is it proper for a West Virginia law enforcement officer or agency to, after being sued for allegedly improper conduct, hide the facts of the alleged conduct?  Where in that scenario is the public being represented or protected?  

And doesn’t the public deserve representation that is open and amicable?  Can they not just call up their opponent and say, “hey, I would like to have the deposition in location C.  Let’s work it out.”  Or, why not say, “hey, is this date and time good for you for a hearing on such and such?”  Almost every other non-big-shot lawyer in West Virginia does this.  And most get along fine, fight it out, and end the day as friends.  But these big-shots make a game out of scheduling hearings for dates that they know their opponents are unavailable, and then they oppose any motion to continue.

For instance, several years ago, my son was a new-born, and had to go back to the hospital due to a high-fever.  Of course, I wanted to be with my wife and son in the hospital.  One of these jerks set a hearing, knowing I would be in the hospital.  When I found out, of course, I was enraged.  I called him and he refused to voluntarily move the hearing.  My office filed a motion on my behalf to continue.  He opposed it.  Of course, the judge granted the motion and continued the hearing.  Classy lawyer huh? 

And this behavior isn’t limited to those civil defense attorneys representing government agencies.  They are encountered frequently in personal injury litigation.  I guess you have to be of that mindset when your goal is to stop an injured victim from getting the compensation they deserve.  Part of their game is to be a real jerk to the client during their deposition.  They try to upset them, to rile them up, to make them so upset at having filed a claim against their client – the insurance company, they they regret it and lose the will to go on.  Is that the way to win?  I don’t believe so.

So how should mere mortals such as myself deal with these big-shots?  Maybe the best strategy is to do as Sun Tzu advised,and  ”pretend inferiority and encourage his arrogance.”

I should also insert a caveat here that, the real big-shot attorneys, the one’s who’s names can be found in large letters on the outside of fairly large – or actually large – buildings, do not fit this mold in my experience.  They have been among the nicest, and most respectful, attorneys I have encountered – both socially and as opponents.  True classy lawyers.  And I think it proves my point that their names ended up on those buildings – not through behavior as is discussed in this post – but rather through respectful behavior and intelligent lawyering.  Kind of like speaking softly and carrying a big stick.

And less I anger some personal injury defense attorneys out there who are truly good people and quality lawyers, I also hereby insert the caveat that there are a few out there.  I have had as opponents those who sympathize for my clients and who reasonably attempt to get their insurance company clients to offer reasonable compensation for injuries if it is deserved.  I have encountered those who are respectful and who are basically friendly.  But that is, at least in my opinion, the exception for the big-firm Charleston attorneys who venture out into the wilds of West Virginia dealing with us small-town yahoo local yokels.

 - John H. Bryan, West Virginia Attorney, and all-around nice guy.

Double Dipping Mall Officers

There was an article in the Charleston Gazette this morning about the ongoing criminal trial of an officer accused of “double dipping” – working as a mall security guard while still on the clock as a police officer.  I probably wouldn’t have commented on this, but I happened to glance at the article and noticed that the defense attorney was one of the two defense attorneys who participated in the police liability CLE in Charleston a few months ago.  He is a civil defense attorney from a large Charleston firm who primarily defends police officers/departments in civil lawsuits.  It makes me wonder.  Is the City (Charleston Police Department) or it’s insurance carrier paying for his criminal defense?  Or did this officer just respect this particular attorney’s skills through past experience or by reference and hire him personally as his criminal defense attorney?  It might be a good FOIA request issue for the Gazette to take on.  If the City is providing the defense, what is the reason?  How much is it costing taxpayers?  And should an officer be provided with a prominent and expensive attorney when charged with a financial crime?  I think these are all good questions if indeed the City is paying the bill.

This also reminds me: I had a former police chief, who subsequently became a federal corrections officer, testify at a murder trial for which he was the investigating officer.  At the time he traveled to the trial location, he was being paid by the federal government.  Additionally, the City took it upon themselves to generously and liberally pay the man for his hourly time during his trip and during his testimony.  Of course this was never disclosed to the defense.  I later found out about it from a letter to the editor in that city’s local paper.  Unfortunately, the Supreme Court didn’t really care about the nondisclosure issue.  He was given the opportunity to return the money to the City, which I believe he did.  He was not prosecuted.

 - John H. Bryan, West Virginia Attorney.

Personnel File Discovery Issue Litigated – another helpful plaintiff’s opinion

There was in interesting three part series in the Charleston Gazette’s “Watchdog blog,” “Sustained Outrage” by Andrew Clevenger, focusing on a civil lawsuit against the West Virginia State Police on behalf of Charleston attorney Roger Wolfe – a case I posted on awhile back.

Part 1 deals with a FOIA issue that popped up in that case.  Law enforcement agencies (or rather their defense counsel) do not want to hand over the contents of internal investigations of law enforcement officers, citing concerns over sustaining the integrity of the internal investigation process.

Wolfe’s attorneys made a discovery request for those documents, and the WVSP objected claiming that under a Freedom of Information Act Request (FOIA), those documents would be exempt from disclosure.  However, Cleavinger quickly points out that:

Except…

A state Supreme Court ruling in a 2000 case, Maclay v. Jones, SPECIFICALLY addresses theVERY ISSUE of police records and civil litigation. Here’s what the syllabus point says:

The provisions of this state’s Freedom of Information Act, West Virginia Code §§ 29B–1 to -7 (1998), which address confidentiality as to the public generally, were not intended to shield law enforcement investigatory materials from a legitimate discovery request when such information is otherwise subject to discovery in the course of civil proceedings.

But Andrew, that’s a STATE case. The rules are different in FEDERAL court, right?

Wrong.

U.S. District Judge Charles H. Haden II, in a 2003 ruling in the case Floren v. Whittington, reached the same conclusion. He even cited the Supreme Court’s Maclay opinion.

Cleavinger then hammers the last nail in the coffin, pointing out that:

Virginia Lanham should remember this ruling, as she was one of the two attorneys fromShuman, McCuskey & Slicer who represented some of the defendants in the Floren case. (So should Michael Mullins, who represents Trooper Green in the Wolfe suit; he defended former Dunbar Police Chief Earl Whittington in Floren.)

This case is pending in federal court.  The presiding judge issued a ruling in an eleven page opinion  - by the way this is another helpful opinion for any plaintiff’s attorneys litigating this issue – calling the WVSP’s objection to the discovery request “unpersuasive” and “unconvincing” and even ordered the WVSP to pay Wolfe attorney’s fees for their improper objection and refusal to produce the personnel filed, etc.

Let’s see if the defense counsel try to use these objections in state court….

 - John H. Bryan, West Virginia Attorney.

Back when men were men…

There was a moving article in the Register-Herald this morning about the passing of Raleigh County attorney William H. File, Jr.   Though I did not know him, I can’t help but admire the life that this man led.

Aside from a four-year stint during which he served the United States during World War II, File had served the citizens of southern West Virginia since 1937 as a member of File, Payne, Scherer and File, a firm started by his uncle Ashton File in 1902.

File’s time in the Navy was anything but uneventful, as he witnessed first-hand the invasions of Normandy and Sicily and, shortly after the invasion of Okinawa, was involved in a kamikaze attack off the coast.

During the attack, the ship of which he was the commanding officer served as a rescue boat of sorts for the crew of the larger USS Callaghan, which exploded and sank after it was struck by a kamikaze.

For his service, File received a Legion of Merit as well as a Silver Star. 

As I noted a few days ago, many in our country are doing their best to make sure that we churn out a bunch of sissies, who can’t even be in the presence of a wooden mock gun – much less defend the world against a brutal and evil empire – as this man did.  And then he returned to America and continued to practice law as if nothing had ever happened.  People of that generation were passionate about everything they did – from defending the country to practicing law.  To be enthusiastic about the practice of law until your 90’s is truly remarkable and is probably not something we will see very often in the future.

How many modern day lawyers would have so many people come forward at their death and extoll their virtues and their life?  Nowadays it’s all about money. Most people would cut your throat if they thought they could make a buck – especially lawyers.  Incivility is the rule, and arrogance and ego reigns supreme. Everyday members of our greatest generation are disappearing, and leaving with them are the final remnants of an era when men were men….

Why not just cut out the middle man?

There was a story posted yesterday in the ABA Journal, titled “Lawyer Reportedly Went Undercover in Drug Sting, Snagging Ex-Clients“:

Frank Pignatelli was facing a possible indictment as a co-conspirator when he agreed to work with authorities in the drug sting, according to a story in the Akron Beacon Journal. Now he’s representing drug defendants and other accused criminals in Denver.

…

The Wall Street Journal Law Blog says the story has raised hackles among some legal bloggers. But Mark Bennett of the Defending People blog says it is possible that Pignatelli’s clients were using him to commit crimes. “In that case, what they told him was not privileged, and it’s hard to sympathize with either him or them,” he writes.

As I’ve said before, one thing that people should take into account when retaining a lawyer is the moral fiber and character of any particular person.  In my opinion, there are severe disadvantages to hiring one of these shyster lawyers who would slit your, or anyone else’s, throat if they thought they could make a buck at it – client or not.  We all know who they are in our respective communities.  Unfortunately, the nature of the profession seems to attract the type, and there’s no shortage wherever you go.  I suppose these “clients” of Pignatelli got what they deserved.

Would you really want your life, or your case (or both), in the hands of someone who jurors can see through like an ice sculpture?  Someone who a juror can look at, and say, “I really don’t trust that guy….”  Someone who just talks a little bit too fast.  Someone who gives you that feeling that your getting lied to….  Of course, it also doesn’t help build credibility with the jury if your lawyer was the undercover informant who busted you.

 - John H. Bryan, West Virginia Attorney

Lawyers per capita in West Virginia

Since it was mentioned in my last post that new law school graduates are probably having a tough time during these tough economic times given their annually increasing number, I thought it pertinent to comment on a post at Simple Justice regarding the number of lawyers per capita in New York.  I looked up West Virginia for a comparison.

Scott Greenfield writes that for every 21 people in Manhattan, there is one lawyer: 

For many lawyers, the “big fish in a small pond” aphorism applies.  Not for lawyers in Manhattan.  It’s not easy surviving, no less thriving, in an environment so lousy with lawyers.  Hesitate and some other lawyer has just jumped your potential new client.  Have your receptionist take a message and the next one (or 1000) will take the call.

According to the Avery Index, overall, the District of Columbia leads the states with 276.7 lawyers per 10,000 residents, with the State of New York trailing at 20.4 lawyers per 10,000 residents.  Given these numbers, and having worked in D.C. before, I would have to disagree with Greenfield that New York is the most lawyer-saturated and competitive legal market.  D.C. is absolutely riddled with lawyers, thanks in most part to the federal government.

West Virginia ranks number 25 on the list with 8.8 lawyers per 10,000 residents, just behind Maine.  North Dakota ranks last with just 4.4 lawyers per 10,000 residents.  What about individual West Virginia counties?  I did my own non-scientific (and most likely non-accurate) study across five different types of West Virginia counties (bear with my math here, I may have done something horribly wrong):

Kanawha County: approximately 1 lawyer for every 106.4 people (roughly 93.98 lawyers per 10,000 residents)

Raleigh County: approximately 1 lawyer for every 528 people (roughly 18.9 lawyers per 10,000 residents)

Mercer County: approximately 1 lawyer for every 450 people (roughly 22.2 lawyers per 10,000 residents)

Greenbrier County: approximately 1 lawyer for every 430.7 people (roughly 23.2 lawyers per 10,000 residents)

Summers County: approximately 1 lawyer for every 812.5 people (roughly 12.3 lawyers per 10,000 residents)

Monroe County: approximately (but slightly more accurate) 1 lawyer for every 2,430.5 people (roughly 4.1 lawyers per 10,000 residents)

Note: these numbers will be slightly overestimated because they also include judges and non-practicing attorneys who reside in the particular county (with the exception of Monroe County since I already took the time to ferret those out)

 - John H. Bryan, West Virginia Attorney

Bailout for divorce lawyers?

There was an article yesterday in the Wall Street Journal jokingly wondering where the bailout was for the nation’s divorce lawyers.  They note that unlike bankruptcy or personal injury practice, divorce filings drop off steeply in a recession.  Apparently divorcing spouses are able to put financial planning ahead of their immediate differences.  

I have noticed as a regular pattern that the number of people calling about divorce situations drops off during the cold winter months – usually with the rest of the West Virginia economy.  Then, like clockwork, as soon as spring hits, and the birds and the bees return, so does the inclination to start looking for a divorce lawyer. Of course, there are those divorces that pop-up regardless of the economy and finances – and those are truly special cases, sure to give any attorney that personal gratification that comes with handling a very special divorce case.

The article also notes that: 

There are now some 1,162,124 attorneys in the U.S., and the law schools are spewing out graduates at a rate of 43,518 a year, all set adrift upon a public that increasingly doesn’t have money to pay for their services. There is no other profession more dependent on discretionary spending, except perhaps the oldest one.

People don’t realize that, unlike the medical, dental, or veterinary professions, there really is no limitation on the amount of students that can attend law school.  They are all over the place, and there are more popping up every year.  If you really want to get in one, you can somewhere.  But that doesn’t mean there is a job waiting for you when you get out (in debt).  

 - John H. Bryan, West Virginia Attorney

Don’t talk to the police

I came across a great video lecture from a law professor posted on the Georgia Criminal Law Blog that everyone should watch – attorneys and laypersons alike.

Don’t talk to the police, at any time, under any circumstances. Period.

The latter half of the video features a cop telling “the other side of the story,” and was the subject of a previous post by Scott Greenfield, titled “One Lecture By a Cop with Many, Many Lessons,” who commented that this displayed some revealing insight into the practice and procedure of police “interviewers.”

– John H. Bryan, West Virginia Attorney

“The Truth About Hiring a Criminal Defense Lawyer”

Miami criminal defense lawyer Brian Tannebaum, e-book titled, “The Truth About Hiring a Criminal Defense Lawyer,” is a must-read for persons facing criminal prosecution. One of the unsavory aspects of practicing criminal defense is dealing with those clients who have misconceptions about criminal defense attorneys, and this e-book blows some of them out of the water. Hard copies of this text ought to be handed out to arrestees during booking (that would have to be by law of course, and not due to the arrestors desire to help out their arrestees).

On the importance of having the right attorney, he states that he is not talking to “the first time offender on a non violent minor case who has no aspirations to ever accomplish anything, like obtain credit, a mortgage, a job requiring a license, or about 300 other things that now subject people to a criminal background check. If you are now, and will be the rest of your life, a complete nothing, forget the lawyer and just handle it yourself.”

On the topic of “money,” he advises never to “call a lawyer you are thinking of hiring and ask how much he charges. He will immediately think you are cheap, broke, and that you will waste his time in a consultation.” He advises rather that you should hire a lawyer you feel comfortable with, who charges more money than you wanted to spend.

On the topic of lawyer advertising, he advises people not to fall for any type of advertising, but rather to requests referrals from those you trust, and then to do your research: visit websites, google their name, and ask some specific questions at the consultation, such as how much of your practice is criminal defense? (Anything under 50% leave, now).”

On the topic of “former prosecutors” advertising themselves as “former prosecutors,” he advises to hire one based only on his defense experience, and “definitely make sure if he has recently departed from the office, you ask why he left (no one ever does). And by all means, he says, stay far away from those former prosecutors who leave for civil firms and “take” some cases, since “they’re about as committed to criminal defense as the real estate lawyers in the firm.

Regarding “connections” – and this is a topic that I have frequently encountered – he advises those seeking a criminal defense attorney to disregard them. I have heard of many, many people going with a certain lawyer because of his or her “connections” with the judge or the prosecutor – or whomever. On this phenomena, Tannebaum states that no “incorruptible judge is going to suppress evidence because she’s friends with the lawyer, no prosecutor is going to ‘take a dive’ in court because he’s on the defense lawyer’s basketball team, and the most you can expect from a police officer is that because he knows the defense lawyer (and if he doesn’t hate the client for telling him to screw off at the arrest scene), he may tell the prosecutor to give you a break). He notes that “a good criminal defense lawyer with a great reputation has serious connections in the courthouse, and doesn’t talk about them. I once had a prospective client tell me that he was going to hire another attorney because he was told that this attorney plays golf with the judge (despite the fact that I knew this attorney did not play golf at all). Criminal defendants with this type of attitude usually end up getting bad results.

All-in-all, this is great advice that is not commonly known among those shopping for a criminal defense attorney, and although there are some other topics I would add, these are some of the most common misconceptions and mistakes made by those seeking criminal defense counsel.

I would add, that, before you commit to hiring a certain attorney, watch that person in the courtroom. Criminal defense attorneys are commonly in court, usually several times per week. You can tell a lot about what kind of representations you will get just by watching the person in routine motions or appearances before the court. And if you get an opportunity to watch the person try a case, then by all means, that is the most telling of all.

– John H. Bryan, West Virginia Attorney

Some good material for a Wednesday morning…

Thanks to the CrimLaw blog for these.

– John H. Bryan, West Virginia Attorney.

So far away, yet so similar…

While perusing Fort Worth criminal defense attorney Shawn Matlock’s blog, I came across a post describing the world of Texas’ Magistrate Court, which seems to be strikingly similar to West Virginia’s Magistrate Court. Apparently we are not that unique with respect to the concept of speed-pleading. And I thought that I was the only one who felt uncomfortable in that type of judicial atmosphere…

– John H. Bryan, West Virginia Attorney.

Client Decisions, Prosecutors and Secrets

Mark Bennett has a great post from yesterday regarding the quick decision-making that takes place between a criminal defendant and his or her lawyer.

Much of the decision-making is centered around whether and when to reveal NLS’s – “nasty little suprises” – to the prosecutor. Bennett characterizes NLS’s as “a piece of evidence that I have that the State doesn’t have; it can be a fact that I know that the State doesn’t know; it can be something that the State doesn’t realize it should have done, but hasn’t; or it can even be a bit of law that the State isn’t aware of.”

A lawyer I used to work with was on his way to a felony jury trial, and was listening to a tape of an undercover drug buy that had been provided by the prosecution as a part of discovery. The day prior, the investigating officer had testified that he absolutely did not do something illegal (which the defendant had alleged he had done). This lawyer just happened to turn the tape over to side B while on his way to the courthouse, which was supposed to be blank. In the middle of side B, there was some audio. As he listened, he realized that the officer had committed the illegal act, and that unbeknownst to him, the microphone was on and recording. It seemed that likely the prosecutor and the officer were unaware that this was captured on the tape.

So upon arriving at the courthouse, he went to the prosecutor and said, if you want to continue with this trial, I have something that will end the career of this officer. He said, you only other choice is to immediately dismiss the case with prejudice. The prosecutor dismissed the case with prejudice. Did the prosecutor know about the missing audio on side B? Did he technically provide the exculpatory evidence all -the-while hoping it would not be discovered in the middle of side B? I don’t think so. If he or the officer knew about it and wanted it to remain unfound, they probably would just have erased it.

Anyways, it is interesting to see Bennett describe his mental process with regards to dealing with prosecutors – the good, the bad and the young. Much of what he describes I have observed in my own experience.

– John H. Bryan, West Virginia Attorney.

Gerry Spence Blog

Gerry Spence, one of the greatest criminal defense attorneys to every practice the profession, and who’s book, “The Smoking Gun,” is a must-read for every criminal trial lawyer, has entered the “blawgosphere”. You can find his blog here.

– John H. Bryan, West Virginia Attorney.

Charleston Lawyer Sues WV State Police For DUI Arrest Beating

As reported in the Charleston Gazette today, Charleston lawyer, Roger Wolfe, who is a “senior labor and employment lawyer” with Jackson Kelly, was arrested on suspicion of DUI on June 17, 2007. Apparently he was taken to the South Charleston state police “barracks” (again, why do cops like to pretend that they are some type of pseudo-military), and when he smiled at a female trooper, she told him that she would wipe that smile off his face, and had a male cohort take him into an adjoining room. He was beaten so fiercely that he leaked cranial fluid out of his nose.

Then, as if to add insult to injury, the emergency room doctor allowed a trooper to come in and question him while he was in-and-out of consciousness, in order to cover their tracks. For instance, he was supposedly asked, “when you were speaking with the female trooper, do you remember trying to kiss her?” and “how did you get that knot on your head.” If all he had was a knot on his head, then why was he in the emergency room? And why did he spend a week in the hospital with “potentially life-threatening injuries?” What if he did try to kiss her? Is that worth the man’s cranial fluid on the floor? I would hope that other female law enforcement officers are embarrassed and ashamed of this…

Good luck to Mr. Wolfe. The sad thing is that had this guy not been a lawyer with a powerful firm, probably nobody would believe him. This matter better be under investigation by the state, and by the feds. These crooked cops deserve to be stripped of their badges and locked up with their prior arrestees.

You can read the full article here.

– John H. Bryan, West Virginia Attorney.

Honor Among Lawyers…

From Simple Justice this morning, Scott Greenfield has a great post about the old days of practicing criminal law, when there was some semblance of integrity among lawyers – and among prosecutors. This reminds me of a lawyer I am dealing with right now in an unnamed city in southern West Virginia, who would cut your throat in a second if he thought it would help his case one iota. There is something inherently sleazy about an opposing counsel who’s word you can’t trust. I was always taught that as a lawyer, your integrity and credibility is all you have and is never worth violating – no matter how much you want your client to win – and I believe that. I also believe that what comes around goes around, and that you reap what you sow – or rather your client will reap what you sow. If you sow lies and sleaziness, your client will end up suffering for it (though many times birds of a feather stick together – and the client probably deserves it).

However, this is not the first sleazeball lawyer that I have encountered. A little over a year ago my newborn son was admitted to the hospital with an uncommonly high fever, so my wife and I were resolved to stay with him the entire time he was there. Only one attorney gave me a problem about continuing all of my scheduled court dates. He was out of Raleigh County, West Virginia, and it was a particularly nasty civil litigation matter. He refused to agree to a continuance, just out of meanness. His client was mean too (as I said, birds of a feather…). Fortunately, the judge didn’t have any problem continuing the hearing on my unilateral request.

Just remember, there are good and honest lawyers out there, and it is my belief that they will better serve clients and will be more successful in the long run. And then there are mean, sleazy, and downright evil lawyers out there, who will engage in “rambo” tactics and lies to try and intimidate and steal victory. But mark my words that it’s a universal truth that good will always win in the long run – even if it does not appear that way.

Truth has an inherent advantage in the courtroom. If a lawyer cannot be honest, he (or she) cannot be sincere and honest to the jury. You have to believe what you are saying to ultimately persuade a jury – you can’t just try and trick them. You have to show genuine emotion. In order to do that, you have to give a damn about what you are saying. Jurors, despite what people say about them, pick up on these things, and will 9 times out of 10 will pick up on honesty, sincerity, and goodness. They also pick up on sleaziness and lying.

What happened in the case of the sleazeball lawyer from Raleigh County? His client lost, my client won – i.e., his client had to take out his check book and write my client a fairly large check.

Of course, this is all one man’s opinion and you can be sure there are those out there who will disagree with everything I have said.

– John H. Bryan, West Virginia Attorney.

Police Officers and Domestic Battery in West Virginia

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

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

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

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

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

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

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

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

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

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

– John H. Bryan, West Virginia Attorney.

Cop Retaliates Against DUI Lawyer’s Wife

A colleague forwarded this article to me about a cop in Arizona who pulled over and arrested a woman for DUI even though she had a 0.00 BAC. Why would he have done that? Apparently her husband is a DUI lawyer in Arizona who had recently won a high-profile DUI trial. Guess who was the arresting officer for that DUI? That’s right, it was the same cop who arrested the DUI lawyer’s wife.

This disgusting excuse for a law enforcement officer’s name is Bond Gonzalez.

You can read the full article here.

This is something that I continuously worry about. One day I am haranguing a cop on the stand and figuratively chasing them around the courtroom beating them with a stick, and the next day I am peering in my rear view mirror waiting to be pulled over – or worse.

In reality though, most cops have been very good to me outside the courtroom. In fact, I usually make it a policy to apologize to cops I cross-examine after the hearing takes place, and most of them tell me that they don’t mind at all and that they would want me to do the same for them if they were charged with a crime. A few cops have even called afterwards to talk about their own legal matters.

Some Surprising Results in Greenbrier, Monroe County and Summers County Primary Elections

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.

Special Prosecutor in Sawyers Case Arrested for Domestic Battery

From the Register-Herald:

Assistant prosecutor says he’s still on the job

Well, well, well. The tables have turned. This man requested to be appointed special prosecutor to the Greebrier County Sawyers case (see my previous posts) and pushed the grand jury for a felony battery charge. Now maybe a special prosecutor needs to be appointed and bring his charge before a special grand jury and try to indict him on a felony charge. – John H. Bryan, West Virginia Criminal Defense Attorney.

Despite reports, Dotson says he has not resigned or been fired after arrest

By Christian Giggenbach
Register-Herald Reporter

A Braxton County assistant prosecutor said Thursday he has neither resigned nor been fired from his position despite at least two separate news reports that indicated otherwise after he was arrested on a domestic assault charge last weekend.

Nicholas County Sheriff’s Deputy D.J. Holdren arrested Daniel Dotson Sunday at his Webster County home following an alleged incident with his wife at a Craigsville convenience store. Officials at Central Regional Jail in Flatwoods confirmed Dotson was photographed and processed on a domestic assault charge and was released after posting $2,000 bond.

The Charleston Gazette and Charleson Daiy Mail reported Thursday that Dotson had left his position as an assistant prosecutor under Braxton County Prosecutor Bill Martin. The Braxton Citizen News also published a story that Dotson was “no longer an employee” of Martin’s office, and the Pocahontas Times published the Braxton Citizens News story about Dotson on its Web site.

When reached by phone Thursday, Dotson denied those claims.

“Regardless of what was in the paper, I have not been terminated and I have been staying out of the office for a while until I can take care of other matters,” he said.

Martin did not return phone messages left with his secretary Thursday.

Dotson, who has been prosecuting cases since 1989 and was elected Webster County prosecutor in 1996, was appointed special prosecutor by the state Supreme Court last year in the case of a Greenbrier County sheriff’s deputy accused of beating county Prosecutor Kevin Hanson. The deputy, Kevin Sawyers, was indicted last week by a special grand jury on a misdemeanor battery charge.

“This will not affect my status as the special prosecutor in the Greenbrier County case,” Dotson said.

The director of the West Virginia Prosecuting Attorneys Institute in Charleston said Thursday that Dotson was individually named special prosecutor in the Greenbrier case and only an order by a circuit court judge could remove him.

A special judge had not been named to hear the case as of late Thursday. Both Greenbrier County circuit court judges asked to be recused from the case.

Dotson, who was also named special prosecutor in a Pocahontas County case involving a sherif’f’s deputy, is scheduled to appear in court there for a hearing this morning. Dotson said he will be present for the hearing.

Although Dotson declined to specifically talk about the charges pending against him in Nicholas County, he did indicate his innocence.

“I am ready to defend myself in a court of law concerning those charges,” Dotson said.

— E-mail: cgiggenbach@register-herald.com

Bus Driver’s Pretrial Hearing Continued

From the Beckley Register-Herald:

Bus driver’s pre-trial hearing continued

Christian Giggenbach
Register-Herald Reporter

A pre-trial hearing in the case of a Monroe County school bus driver charged with DUI has been continued until March 10 because his court-appointed lawyer asked to be dismissed from the case, officials said Tuesday.

Clyde Watson Jr., 62, of Union, was scheduled to appear Tuesday before Monroe Magistrate Nancy Crews, but his court-appointed lawyer, Jeff Rodgers of Lewisburg, filed a motion to recuse himself, according to court documents.

The reason for the recusal request was not given in the document, and Rodgers was not available for immediate comment Tuesday.

Watson, a 14-year veteran bus driver, was charged with DUI while transporting minors after he crashed his bus into a ravine with 11 children on board Feb. 4. A preliminary breath test indicated Watson had a small amount of alcohol in his system, .022.

About a week later, Watson apologized to the community and board members in a letter given to schools Superintendent Lyn Guy in which he admitted to an ongoing alcohol problem and being impaired the day of the bus crash. The school board held an emergency meeting the following Monday and announced in a brief news release that Watson had resigned.

However, after obtaining both of Watson’s letters through a Freedom of Information Act request, The Register-Herald learned Watson did not resign his position, but rather the letter stated he was “retiring effective immediately.”

When asked about the discrepancy Tuesday, Guy said Watson could not make up his mind on whether to resign his position or retire and he chose to retire after learning he risked some benefits if he quit his job.

“He told me he was going to lose some of his benefits if he was fired, so I wrote the news release as a resignation,” Guy said by phone Tuesday. “We had already set up a termination letter and had a termination hearing scheduled. I don’t know if it makes too much difference. My goal was to make sure that he never drove another bus again.”

If convicted, Watson faces two days to 12 months in jail and up to a $1,000 fine.

— E-mail:

cgiggenbach@register-herald.com

38 Former Duke Lacrosse Players To Sue

From today’s Charleston Daily Mail:

Note: Good for them. See my former post regarding Nifong here.

38 former Duke lacrosse players plan to sue

by Newsday

More than three dozen former Duke University lacrosse players said they would file a lawsuit Thursday seeking damages in connection with the infamous rape case that was later dropped.

The 38 players’ attorneys said they would announce the claims in their federal civil action at the National Press Club in Washington.

“All of this will be discussed tomorrow,” said Bob Borg, a spokesman for the players.

The action would be the latest of at least three lawsuits that have been filed since a North Carolina attorney general dropped charges in April against three Duke lacrosse players who had been indicted on criminal charges for the March 2006 alleged rape of a woman who performed as an exotic dancer at a party off the Durham, N.C., campus.

Two other suits have been filed by the three players who were indicted and three others who weren’t indicted.

The prosecutor, Mike Nifong, was disbarred when a panel found he withheld evidence from the defense.

The three formerly indicted players, Reade Seligmann of Essex Fells, N.J.; Collin Finnerty of Garden City, N.Y., and David Evans of Bethesda, Md., have sued Nifong and the city of Durham but reached a settlement with Duke.

In December, players Breck Archer, of East Quogue, N.Y., Ryan McFadyen of Mendham, N.J., and Matthew Wilson, of Durham, N.C., filed a lawsuit against Duke, Nifong and the city of Durham, among other entities.

Special Grand Jury and Special Prosecutor Called for Beating of Greenbrier County Prosecutor

From today’s Beckley Register-Herald:

Special jury called for prosecutor beating

By Christian Giggenbach
Register-Herald Reporter

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.

More Greenbrier Valley Lawyers Enter Political Races

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.

Jury Convicts Michael Merrifield in Putnam County, WV Murder Case

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.

Charleston Lawyer Sentenced to 33 Months

From the Charleston Gazette yesterday:

Ex-bond lawyer gets 33 months
Coleman guilty of embezzling from employer

By Andrew Clevenger
Staff writer

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.

Field of Lawyers in Race for Greenbrier County Judgeship

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.