West Virginia Criminal Law Blog

A story in the Charleston Daily Mail today reported that a Kanawha County mother was charged criminally with the death of her 22 month-old son.

Elizabeth Dawn Thornton, 21, was arraigned in Kanawha Magistrate Court in connection with the death of Constantine Alexander Washburn, known as Alex.

Lt. Sean Crosier, of the Kanawha County Sheriff’s Department, said the infant died May 31 as a result of injuries received May 26 in his Cross Lanes home. Crosier said the boy’s severe brain injuries and other injuries would have required immediate medical attention, but that Thornton did not seek help until a friend called an ambulance on May 29.

Crosier said authorities waited several days before charging Thornton. “This is a very, very serious allegation and we wanted to make sure everything was right,” he said. He said authorities are still questioning other family members, including the boy’s father, 31-year-old Christopher Washburn.

Police believe the elder Washburn may have been present when the boy was injured. Crosier did not know if other charges are pending.

According to the criminal complaint, both parents told police Alex Washburn bumped his head on a table and hit his chin on a toilet. But doctors said the boy’s severe brain injuries and bruising on his neck did not support their stories.

As a criminal defense attorney, this is the most upsetting type of case, because babies are innocent 100% of the time and have been robbed of their life. Secondly, there are many types of accidental situations that could be construed to be child abuse or neglect, resulting in essentially murder charges against parents who have suffered a great tragedy.

In these types of cases, there is a very fine line between parents who deserve to rot in prison, and parents who are either innocent, or unintentionally harmed their child. What separates the two? The medical examiner who performed the autopsy. The ME will come up with some reason why the injuries do not corroborate the parent(s) version of what happened. Therein lies the problem: what happens when two doctors disagree on the autopsy results and their necessary conclusions? You have a situation where two doctors testify against each other for opposing parties in a court room. But this is not a civil case, this is a criminal case, with everything at stake, not just money.

Case in point: I had a similar case where a 6-month-old child died tragically. The autopsy was performed and it was ruled SIDS (sudden infant death syndrome) by the ME. Law enforcement thought something was fishy, and they didn’t like the ME’s conclusion, so the ME was fired, and a new ME was brought in to take a second look. Guess what? The second ME ruled the death a homicide, based on the conclusion that blood in some cavity of the body meant it must have been murder, or that someone was lying. So the investigators leak the story to the newspapers and start interrogating the parents.

So what happened? After being devastated by the death of their infant, the parents were already at the end of their rope. Within months, both parents committed suicide. Tragically, an entire family disappeared from the world.

The point is, that investigators better make damn sure they know what they are talking about, and the parents better run - not walk - to an independent physician to review the ME’s findings.

Read the full article here.

- John H. Bryan, West Virginia Attorney.

From the Register-Herald this morning:

A wrongful death lawsuit filed late Monday afternoon claims members of the Raleigh County Sheriff’s Department acted negligently when they shot and killed a Cabell Heights man who was firing a high-powered weapon in the early morning hours of July 4, 2006.

Filed by Charleston attorneys Michael A. Olivio and Travis A. Griffith on behalf of Mary Webb, the widow of Robert Webb, the suit lists defendants as the Raleigh County Sheriff’s Department, the Raleigh County Commission, Sheriff Danny Moore, then-Chief Deputy Steve Tanner, Deputy Greg S. Kade and Deputy John E. Hajash.

According to Register-Herald files and the complaint, Kade and Hajash were responding to a complaint that Robert A. Webb, 44, was playing loud music and shooting an AK-47 assault rifle outside his Cabell Heights home.

According to the lawsuit, Webb was discharging his firearm in celebration of his birthday and the Fourth of July holiday, but more than 30 minutes had elapsed between the firing of the weapon and the arrival of Kade and Hajash at the Webb residence.

The suit also claims “numerous residents within the neighborhood” were also firing weapons in celebration of the holiday and that Webb never fired his gun to threaten or endanger anyone.

The complaint claims Kade and Hajash parked away from the residence, out of sight, and approached on foot “while using cover to conceal their presence.” It also claims Kade took an assault shotgun from their patrol vehicle instead of his service standard handgun in spite of the fact the call was considered a “non-emergency nuisance call.”

When the deputies arrived on the scene at approximately 1 a.m., Webb was not shooting; still Kade and Hajash remained concealed by a row of trees until they witnessed Webb turn away from them, “at which time they ran toward Robert Webb in order to close the distance between them,” according to the complaint.

“Deputies Kade and Hajash proceeded up the street toward Mr. Webb and shot Mr. Webb while he was standing in the driveway of his home,” the complaint reads. “Deputies Kade and Hajash failed to identify themselves as law enforcement officers prior to firing their fatal shots at Mr. Webb.”

Webb was hit in the head and knocked to the ground by an initial shot from a shotgun, according to the complaint. While he was on the ground, one of the deputies shot him again with a handgun.

The complaint also claims emergency medical personnel were denied immediate access to Webb by members of the Raleigh County Sheriff’s Department, who finished taking photographs before they allowed medical personnel to touch Webb.

Obviously there are two sides to every story, but if the allegations that are included in the complaint are true, then there were some real problems with the conduct of the law enforcement officers in this situation. Having formerly investigated pattern or practice police misconduct for the Department of Justice, the way these officers approached the scene jumps out at me as either gross negligence or reckless disregard for human life and proper police practices. First of all, shooting firearms into the air on the 4th of July is not an offense punishable by death. They should have approached in their cruisers with their emergency lights on. There was no allegation (apparently) that the victim was firing his weapon towards anyone else. It was obviously a 4th of July celebration. Secondly, the man was in his driveway, it was dark, and they sneaked up on him with a shotgun pointed at his face. It would have been understandable if the victim had shot at the officers. However, he did not - there apparently was no evidence that he attempted to shoot at them. It is uncontested that the victim never fired a shot. Having your head blown-off by a short-barrel shotgun is a pretty harsh way to die, and understandably, the family is looking to make the county pay.

Read the full article here.

- John H. Bryan, West Virginia Attorney.

From the Charleston Gazette today:

Charges are expected to be filed against 19-year-old Andrew S. Hardin, of St. Albans, who allegedly shot and killed Nicholas Lee Caldwell while hunting turkey on Tuesday, state Division of Natural Resources investigators said.

Caldwell, 16, was in a wooded area off Kanawha Street near St. Albans when he was hit by shotgun pellets at about 8:30 a.m., said Hoy Murphy, spokesman for the DNR, which is investigating the incident.

People near the scene told investigators they saw 19-year-old Andrew S. Hardin, of St. Albans, hunting in the area. In an interview with officers, he later confessed he was the shooter, DNR officials said.

As in many other cases, usually the cover-up is more serious than the original crime. What if the victim was alive after the shooting and the shooter left him to die? In that case, he should face murder charges. The autopsy, which will almost positively take place, should indicate whether or not it was an immediate death.

The victim was hunting on private land near his home and he had permission to be hunting there. The shooter however, at least according to the article, appears not to have had permission to be hunting on this land. This is absolutely disgusting to me. As an avid turkey hunter, I have hunted around many other people, and almost every single one of them takes the proper safety precautions. Anyone who can’t tell the difference between a turkey and a hunter ought not to be in the woods in the first place. Furthermore, since this person was likely trespassing, he ought to go to prison for this.

You can read the entire article here.

- John H. Bryan, West Virginia Attorney.