West Virginia Criminal Law Blog

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.

In Daytona Beach, Florida, near my hometown, a police “lieutenant” (I still don’t understand why we give cops fake military rank) was accused of stating the following in response to being cut off from getting free coffee:

“If something happens, either we can respond really fast or we could respond really slow. I’ve been coming here for years and I’ve been getting whatever I want. I’m the difference between you getting a two-minute response time, if you needed a little help, or a 15 minutes response time.”

Then the cop offered to take a polygraph and he failed. Then he was fired. At least the department did the right thing by throwing this jerk under the bus.

You think the cops are bad, in West Virginia? You should see them in Florida. There are two cops for every person. All they do is harass people all day long. And talk about overpaid… The poor cops up here make peanuts. Down there, between the unions and the sky-high property taxes, the cops (and firemen) make over fifty thousand per year starting salary. For reference, many in rural West Virginia cops make under twenty thousand per year. As much as I complain about law enforcement in West Virginia, I still thank my lucky stars that we don’t have Florida’s storm-troopers.

You can read the article here.

- John H. Bryan, West Virginia Attorney.

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.

At lunch today, I was thinking about my previous post regarding the Charleston cops spotlighting deer, and it hit me. It all boils down to this:

Case in point: Cops have a suspect. Cops go to suspect’s house. Cops do not have a warrant. Cops illegally enter house. Cops look for evidence. Cops interrogate and get statement from suspect. Cops find what they are looking for. Suspect gets attorney. Attorney files a motion to suppress evidence found based on cops’ illegal behavior (warrantless entry of house). Cops lie and say on stand they were given “consent” to enter. Defendant/suspect says he/she absolutely 100% did not give consent to enter house. Defendant’s parents confirm his/her story. Defendant’s parent’s friend confirms the story. Cops cannot provide signed written consent form (yes, they exist). Judge denies motion to suppress, stating that defendant and witnesses have motive to lie, but that the cops have no reason to lie. Defendant takes plea agreement. Defendant goes to jail or on probation. The end. It happens day after day after day. And in the end, what judge cares if they know the person is guilty? Likewise, what do the cops care? If they fail to find evidence, then the apologize and go on their way. If they do find evidence, they show up in court and say the magic words: “consent,” and boom, the judge denies the motion to suppress. And no one cares but the poor sap who was convicted and the defense attorney banging his head against the wall.

Sometimes practicing criminal defense can be an exercise in futility. People think they have all of these constitutional rights… but, when it comes down to it, you only stand a chance if you can stand in front of a jury and, despite everything found by the police and prosecutors, convince them it would be an injustice to convict your client. Your only hope otherwise is to argue a constitutional technicality on appeal, and who wants to do that when they have some control over their destiny through taking a plea deal - especially in West Virginia where you don’t even have a right to an appeal, and even if you get there, the justices are elected through partisan elections (i.e., good luck Mr. Charged-With-Sex-Crime).

- John H. Bryan, West Virginia Attorney.

As I detailed in a previous post, which can be found here, two Charleston cops, who were off-duty, were caught spotlighting and shooting a deer on W.Va. 34 near Liberty. Did they admit to their crime, apologize and beg the public for forgiveness? No, or course not, the law only applies to citizens, not cops, right? They claim they were ending the suffering of a poor injured deer. Even if that were true, and even if cops are allowed to do this, would it be proper to do it at night with a spotlight? In West Virginia, there are farmhouses all over the place. How could you be sure you wouldn’t kill some innocent person?

These cops are obviously lying, and nobody seems to care. Okay, assuming they shot this deer as part of their official duty, did they radio the dispatcher as to what they were doing? Were they even in their jurisdiction? Everyone knows thats a bunch of garbage. They committed an illegal act, then they got preferential treatment. The DNR officer even stated that “it was difficult to investigate two law enforcement officers….” Why in the world would it be difficult. If I was a cop and I became aware of two crooked cops using their badge and gun to break the law, I would get great enjoyment out of busting them and taking them to task. Heck, they are slandering your profession with their reckless disregard for the law and their utter hypocrisy.

So these cops got a plea deal. They were allowed to plead no contest and were given fines. Apparently the conspiracy charges were dropped as well. The Charleston Police Chief is apparently struggling with what, if any, discipline these officers should suffer with respect to their jobs. Hello…. what about the fact that these cops are lying through their teeth while pleading no contest at the same time? How many poor saps have been convicted based on the testimony of these two cops? I say, let’s reopen all of those cases, because these two guys are liars. Despite this, nobody wants to face the fact that cops lie on the stand, under oath, every single day. Why? Who knows and who cares. They have a variety of reasons, not limited to covering up their own wrongdoings.

The fact is though, that these two cops are lying and it is obvious. The cover-up is worse than the original crime. So they spotlighted deer… in the grand scheme of things it is no big deal. Nobody is perfect, we have all done things that are illegal at one point in our lives. They should have apologized and asked for forgiveness.

These two are hypocrites and liars, period.

You can read the entire article here.

- John H. Bryan, West Virginia Attorney.

This is a story that I will detail in a later post if need be, but it rises to the situation where the public should be informed of this massive abuse of authority.

A southern West Virginia Chief of Police, who is a big guy and also a military veteran, had his little wife arrested by a buddy law enforcement officer for “domestic assault,” taken into physical custody, after which she was able to bond out with a $5,000 cash bond. For those of you who don’t know, $5,000 is the average bond for felonies in southern West Virginia.

This police chief then filed for divorce and refused to drop the frivolous criminal charge against her unless she agreed to his terms for the divorce. This story is continuing and may be updated based on future actions taken by the law enforcement officer.

- John H. Bryan, West Virginia Attorney.

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.

In case you didn’t know, this is the most popular weekend for police to perform DUI checkpoints. According to the Register-Herald, the Beckley -area police are all ganging up to conduct a “DUI saturation sting.” Of course, nobody wants drunk drivers on our roads. The problem is that this makes it extremely easy for innocent people to get caught in their traps.

Beckley Police Sgt. Paul Blume, director of the program, says extra officers from the Beckley, Mabscott and Sophia police departments, as well as from the Raleigh County Sheriff’s Department and State Police, will be out in full force until 4 a.m. Saturday, concentrating on drunk driving patrols.

Blume said although the heaviest DUI concentration will be tonight there will be extra patrols throughout the holiday weekend. In addition to the DUI patrols, extra officers enforcing the annual Click it or Ticket campaign will be on the roads looking for seatbelt violations. Although Blume says Memorial Day ranks at or near the top of the deadliest holidays of the year, there are things travelers can do to help keep themselves and others safe.

“If you’re going to drink, designate a driver,” he said. “Most people know in advance if they’re going to be consuming alcohol. Be smart enough to designate a driver and have someone else drive you.

That certainly is good advice. The best advice however, is probably to stay home this weekend, if possible. Between the drunk drivers, and the cops looking for drunk drivers, you’ll be lucky to make it home in one piece.

You can read the full article here.

- John H. Bryan, West Virginia Attorney.

From his Blog, Simple Justice, by New York criminal defense attorney Scott Greenfield posted about instances of federal judges in New York who made actual findings that certain cops had committed perjury before them.

Instead of publicly reprimanding them, the judges seemed more concerned with preventing damage to their careers. As Mr. Greenfield points out, “welcome to the real world of criminal law.” But why would cops risk losing their job and their pension to lock up any individual criminal? Mr. Greenfield replies, “tell it to all the people that cop’s put away before. Tell it to all the judges who defaulted into finding the cop credible, because he’s a cop, or the juries who bought into the prosecutor’s argument that “there’s no reason why the cop would lie…” There’s a very good reason; that’s just what they do. It’s their job. The courts are a big joke, and they say the magic words that put the bad guys in jail. No big deal, just another day’s work.”

Mr. Greenfield posits that “if there were ramifications for getting caught lying, such as jeopardizing a cop’s career (or more importantly, his pension), they would stop. No perp is worth losing a pension. But cops testily with impunity, and everyone in the system, except the criminal defense lawyer, is there to protect that cop from the consequences of committing the crime of perjury.”

And yes, it is no different in West Virginia.

Read the post here.

- John H. Bryan, West Virginia Attorney.

The following article was written by a Florida DUI lawyer about how to, and how not to, undertake a breath test during a DUI stop or arrest - which was forwarded to me by a colleague in Florida. Obviously, I cannot vouch for its scientific accuracy, so take it for what its worth:

“Stop breathalyzer abuse: Seems that they don’t tell you everything whey they tell you to blow into the machine… ”

By Tom Hudson

The last thing I want to do is to tell drunk drivers how to “beat” the Intoxilyzer. But I am tired of seeing the police misuse the Intoxilyzer to beat up on the citizenry. So the following advice is how to get the Intoxilyzer to measure exactly what it’s supposed to measure: Your breath alcohol. And if it does that, you will probably be under the legal limit.

The police are trained to operate the Intoxilyzer. They take a 24 hour course, and are awarded a certificate that says that they are trained to be “breath test operators” under Florida law. I’ve taken that course, and have one of those certificates.

When the police are trained, they are instructed to tell the subject to “keep blowing until the tone stops.” In reality, you cannot keep blowing until the tone stops. Why not? Because the tone doesn’t stop until you are out of breath. It is a trick, to try to get you to blow out your deep lung air. Why are the police taught to do that? It turns out that the last fraction of a second of the breath is all that the Intoxilyzer measures.

Your “vital capacity” is the amount of air you can exhale from a full inward breath until you cannot blow any more. The lungs of a healthy human being have a typical “vital capacity” of around four and a half liters. That’s 4,500 milliliters. The breath chamber of the Intoxilyzer 8000 is approximately 31 milliliters. In other words, the breath machine measures less than the last 1% of your breath. (Actually the last .6%)

They are measuring only the last 1% of your breath!. That would be fine if the last 1% were a representative sample of your breath alcohol.

But it’s not.

The last 1% of your breath contains the highest alcohol concentration of your entire breath. By telling you to blow until you are out of breath, and measuring only the last 1%, the standard instructions for the Intoxilyzer can overestimate your breath alcohol by as much as 400%.

400%!

So how do you stop the police from overestimating your breath alcohol? Two steps. Remember this: Three and Two. That’s the number “3″ and then the number “2″.

Step One. Take 3 deep breaths before you blow. If you hyperventilate three times before you blow into the machine, you will reduce your breath alcohol by as much as 55%. This occurs for two reasons. First, the breaths cool off your lungs. When the lung tissues are cooler, less alcohol goes from liquid form into vapor. The result is a lower breath alcohol. Second, the breaths clear out the alcohol from your lungs, filling them with fresh air. Find out more in this scholarly article.

(By the way, the reverse is also true. If you hold your breath for a few seconds before you blow, your breath alcohol will be increased. So whatever you do, DON’T HOLD YOUR BREATH before you blow into the machine!!)

Step Two. Blow out HALF of your breath and STOP. Half of a breath is all that you need to give a valid sample under the Florida protocols. The Intoxilyzer 8000 requires only 1.1 liters of breath to register as “adequate volume.” Blowing the minimum required can reduce your measurement by another 30%. How does it do that? By avoiding that alcohol-saturated “deep lung air” that the police are trained to test. The statutes do not tell them to test “deep lung air.” The statutes tell them to test “breath.” So why do they test “deep lung air” instead? Because that’s where the most alcohol is! It is a fraud, plain and simple!

So….. does this work?

I have personally, after a few drinks (all in the name of science, mind you) blown into an Intoxilyzer and obtained a reading of .099. That is over the legal limit. About three minutes later, I took my own advice and blew into the Intoxilyzer after three deep breaths. And blew only half of my breath. The result? A breath test reading of .028.

There you have it. The 3-2 Rule. You can blow an adequate sample under Florida law, and not allow the police to skew your sample so it looks higher than it really is. Sometimes blowing smart is a lot better than refusing to blow at all.

But even with all of this knowledge, the best way to avoid a DUI is not to drink and drive. Period.”

- 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 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.

Part of the reason that I have not posted lately is because I was preparing for a jury trial in Summers County, West Virginia, in a third-degree sexual assault case - basically a “he said - she said” situation. I am pleased to note that the trial went extremely well. It lasted for about a day and a half. After the jury deliberated for about an hour and twenty minutes on Friday, they came back with a unanimous verdict of not guilty.

It is interesting to note that the investigating officer in the case testified on the witness stand during cross examination that trace evidence disappears after 3 weeks. I asked him if he ever watches “Cold Case Files”…. He replied that he did not. I have a feeling however that the jurors had seen it.

- John H. Bryan, West Virginia Attorney.

From the Charleston Daily Mail:

Note: Let me guess… The “injured animal” was an 8-point buck. Undoubtedly, these officers were only charged because there were credible eyewitnesses that watched them do it. If neighbors witnessed it, how far away were their homes? Shouldn’t the officers be charged with discharging a firearm within 500 feet of a residence? (if in fact that was the case) Joe Blow probably would have been charged with all sorts of firearm related felonies. - John H. Bryan, West Virginia Criminal Defense Attorney.

Police officers accused of spotlighting deer

Two Charleston police officers are set to go to trial in Putnam County on charges they shot a deer from inside their vehicle.

Patrolman Conrad M. Carpenter and Cpl. James E. White Jr. are charged with spotlighting, hunting from an automobile, shooting within 500 feet of a dwelling, possession of wildlife parts and conspiracy.

According to a criminal complaint, White and Carpenter were driving on W.Va. 34 near Liberty to visit a friend on Dec. 5 when they spotted three deer crossing the road. One of the deer appeared to be injured, the officers told Cpl. Gary Amick, a conservation officer with the state Division of Natural Resources.

According to Amick’s complaint, Carpenter told White to stop the car so he could shoot the injured animal. White allegedly shone a light on the deer so that Carpenter could hang out the window and shoot it with a .40-caliber handgun, Amick said.

“The defendant and Mr. White did not want the deer to ‘go to waste,’ so they decided to wait around in the area for a few minutes to allow the deer to die, then they would come back and pick up the deer,” Amick wrote in the complaint.

White and Carpenter apparently took the deer with them, but neighbors witnessed the shooting and reported the incident to Amick the next day.

Neighbors took down the license number of the car, which was traced to White, the report said.

The trial, which will be in Putnam County Magistrate Court, was set following a preliminary hearing last week.

Carpenter and White have been on administrative leave since the incident, said Charleston Police Chief Brent Webster.

From today’s Register-Herald:

Sheriff asks State Police to probe deputy bar brawl

Register-Herald Reporter

Greenbrier County Sheriff Roger Sheppard said Tuesday a request has been made asking State Police to investigate a possible bar brawl involving two off-duty deputies.

“There was an incident at a place called Lucy’s Bar, and when the officers got there, they found that possibly a couple of off-duty deputies were involved,” Sheppard said. “I took it to Prosecutor Kevin Hanson the next day.”

Located in Fairlea, Lucy’s Bar operates video poker machines and is considered a sports bar by patrons.

Records from 911 indicated a “bar fight” call was logged at 2:43 a.m. Sunday. Three deputies responded to Lucy’s Bar. The names of the deputies allegedly involved in the fight have not been released, Sheppard said.

Hanson said Sheppard asked for an outside investigation of the incident.

“I wrote a letter Monday to the State Police colonel and requested an investigation,” Hanson said Tuesday. “I have not yet heard back from the State Police.”

Sheppard also said he had not been contacted by State Police concerning the incident.

— Christian Giggenbach

From today’s Register-Herald:

Greenbrier jury says no to felony charge for deputy

Christian Giggenbach
Register-Herald Reporter

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.

From today’s Beckley Register-Herald:

Note: Apparently the judge reversed his prior ruling denying the defense the ability to call an expert witness to testify about proper undercover procedure. The reason for the reversal was that the State called their own witness solely to testify as to the “ins and outs of undercover investigations.” Thus, the defense should be permitted to have their own witness testify as to the impropriety of the supposed undercover operation on the night of the killing. This could form the basis for a self-defense claim. Regardless, if the judge is going to allow the prosecution to present pictures of the defendant posing with guns and old targets painted as police officers, which are extremely prejudicial, he should allow the defense to fully develop his self defense theory. This requires looking at the situation through the eyes of the defendant - which requires testimony regarding the victim’s actions that night.

Another thing which stuck out to me was the testimony regarding having girlfriends or wives in an undercover vehicle while performing a drug buy. Both Trooper Van Meter and their expert, Trooper Davis, testified that “in case of an emergency, they could not swear they would not take their wives along.” What a load of garbage. They were obviously coached by the prosecution to say that. Since when is buying drugs an emergency? Obviously anything can happen in an emergency - what is important here is policy and procedure. This is what is scary about our criminal justice system in West Virginia - even WV State Police officers are willing to slant their testimony and lie on the stand in order to help the prosecution obtain a conviction. Maybe no one cares in this case. But, as I always say, you will care when your brother or son is wrongly accused of a crime and the State puts the conviction machine to work against them. - John H. Bryan, West Virginia Criminal Defense Attorney.

State Police Cpl. D.C. Eldridge shows the jury in the Thomas Leftwich murder trial a photo, recovered from Leftwich’s computer, of the defendant posing with weapons. Eldridge testified in Raleigh County Circuit Court that the computer contained digital images of narcotics, money, various weapons on display and the defendant posing with the weapons.
Rick Barbero / Register-Herald Photographer

Defense to begin in Leftwich trial

Michelle James
Register-Herald Reporter

Following the testimony of three State Police officers, the defendant’s brother and a taped recording of the defendant himself, the state rested its case Wednesday against 25-year-old Thomas Leftwich, charged with first-degree murder, conspiracy and felony use of a firearm in the Aug. 29, 2006, shooting death of Beckley Police Detective Cpl. Chuck Smith.

“I heard him screaming, so I figured I hit him in the leg,” Leftwich said on the tape, adding he was “trying to aim low.”

“I didn’t want to kill the man or nothing.”

The defense will begin presenting its case when the trial resumes this morning. Leftwich is expected to testify at some point in the defense’s case.

Leftwich, in a statement recorded just hours after Smith’s death, was heard explaining what happened in the minutes before and after the fatal shooting of the man he said he did not know was a police officer.

After receiving a phone call shortly after 4 a.m., Leftwich agreed to meet a man he referred to as “Mike,” now known to be Michael Martin, as well as a second person who, in Martin’s words, wanted to buy drugs. Martin was convicted of murder in December and sentenced to life in prison.

Leftwich, who lived in a house atop a hill at the corner of Willow Lane and South Fayette Street, said Martin called and said he was outside waiting. When Leftwich reached the steps leading from his yard to the street below, he said he saw Martin and a “white dude.”

After handing the drugs over, Leftwich said, the person told him “today was my bad day.”

Leftwich told police he feared he was about to be robbed, and when he saw the man reach for what he thought to be a gun, he “pulled out my gun as quick as I could and started firing.”

After firing “three, possibly four” shots, Leftwich said he ran, placing the gun underneath a porch and hiding in his basement.

He told police he knew the person he shot at had been hit.

“He kind of turned around screaming …, ” Leftwich said. “I knew from the screaming that he was hit.”

Leftwich said he decided to confess when he saw his family, including a younger brother, being led from the house in handcuffs after police obtained a search warrant based on information from an eyewitness, Beckley Police Cpl. Will Reynolds.

Earlier in the trial, both Reynolds and Smith’s then-girlfriend, Jasminda (Gonzalez) Curen, testified they saw Smith show Leftwich his badge just before he was shot.

In his statement, however, Leftwich said something different.

“I didn’t see no badges,” he said, adding later, “He could have been reaching for a badge or something, but he didn’t say he was a policeman.”

In his statement, Leftwich said he picked up the loaded Smith & Wesson .357 revolver at the last second because of a bad feeling or “gut instinct.”

Kenneth Leftwich testified he could not remember if he ever told police his brother was a crack cocaine dealer, but said he “told the troopers he might have sold a little bit of marijuana.”

When asked by chief deputy prosecutor Kristen Keller if his brother was a crack dealer, Kenneth Leftwich responded, “I’m not sure.”

Kenneth Leftwich testified he was awakened by multiple gunshots just after 4 a.m. on Aug., 29, 2006, adding there were 15 to 20 shots fired and that he later saw 15 to 20 shell casings in the road.

After hearing the gunshots, Kenneth Leftwich said, he called his brother’s cell phone to “make sure he was OK.”

Keller asked him about additional phone calls and Leftwich said he did not know his brother had shot and killed Smith.

State Police Capt. Scott Van Meter testified that based on phone records there were seven calls between the brothers the morning of Smith’s death.

When shown by Keller a painted picture of a police officer riddled with bullet holes, Kenneth Leftwich admitted he and his brother had used it for target practice, writing their initials, either “T.L.” or “K.L.,” beside each hole. He told his brother’s attorney, Mark Hobbs, the “paint by color” picture had been completed by another brother several years earlier and was the only target he and Thomas ever used.

Although the target depicts a police officer and was marked with a scoring system, awarding different points for different hits, Kenneth Leftwich said he and his brother never discussed or planned to shoot a police officer.

Van Meter told Hobbs the target “looks to me like the rehearsal to doing it (killing an officer),” adding he believed it demonstrated there was an anger toward police.

When asked by Hobbs if he believed that anger was enough to kill an officer, Van Meter responded, “Could be.”

State Police Cpl. D.C. Eldridge testified about photographs recovered from a computer seized from the Leftwich residence the morning Smith was killed.

Eldridge said he recovered 231 photo files, many of which featured narcotics, weapons or money.

In some of those pictures, which were shown to the jury, Leftwich is shown posing with various weapons, including the gun used to shoot Smith.

Hobbs argued the importance of the picture, asking Eldridge if the weapons shown in the photos could be purchased by the general public at a sporting goods store.

“They can be,” Eldridge replied, adding the purchases would be contingent on the buyer’s background and the intended use for the weapon.

State Police Cpl. Jason Davis, who has worked undercover for seven years, testified about the ins and outs of undercover investigations.

When questioned by Hobbs about using his police car as a personal vehicle, as Smith is said to have done, Davis testified his work car was his primary car, and, as an undercover officer, it would look suspicious if he was seen by drug contacts in multiple cars.

Responding to Hobbs’ references and questions regarding Smith’s girlfriend’s presence at the time of the shooting, both Davis and Van Meter testified they, in the case of an emergency, could not swear they would not take their wives along.

Because of Davis’ testimony, Judge H.L. Kirkpatrick reversed a pre-trial ruling, advising Hobbs he would be permitted to produce his own witness to testify about undercover protocol.

— E-mail:

mjames@register-herald.com

From today’s Beckley Register-Herald:

Note: A couple of things stick out here: One, the victim officer and his fellow officer, Reynolds, both had been drinking according to the testimony at trial. Then they drove the murder scene where the victim attempted to make an undercover buy. Who was driving? The article didn’t say, but the obvious conclusion is that someone was drinking and driving. If Reynolds was the driver, then why wasn’t he investigated for DUI? I think we all know the answer to that. Had it been you or I, we would have been arrested.

Lastly, there needs to be accountability for the police. Is it good policy to have these undercover narcotics officers roaming around in police vehicles drinking, driving and making undercover buys with their girlfriends present? Does anyone see a problem with this? Having previously investigated pattern or practice police misconduct for the Department of Justice, it disturbs me that the Beckley PD didn’t turn the investigation of this incident over to the FBI, or at least the WV State Police. Once more, what sucks (for lack of a better term) for this guy, Leftwich, and for his co-hort who was already convicted, the judge is not allowing the defense to make an issue of these questions. If you are going to try someone for murder, at least let them have a shot at defending themselves. Again, I’m not defending either of these guys, but what if it was you, or your son or daughter, on trial? Believe it or not, innocent people do get charged with crimes - especially in West Virginia. - John H. Bryan, West Virginia Criminal Defense Attorney.

Raleigh County chief deputy prosecutor Kristen Keller displays a photograph of the area where Beckley Police Detective Cpl. Chuck Smith was shot to death on Aug. 29, 2006. Cpl. Will Reynolds, left, was one of two witnesses.
Rick Barbero / The Register-Herald

“After I saw him take out his badge, my reaction was, ‘Something’s gone wrong’”

LEFTWICH MURDER TRIAL

By Michelle James
Register-Herald Reporter
A Beckley police officer who witnessed the shooting death of Detective Cpl. Chuck Smith testified Tuesday he sensed something was wrong just seconds before his friend and fellow officer was gunned down on a city street.

“After I saw him take out his badge, my reaction was, ‘Something’s gone wrong,’” Cpl. Will Reynolds said, continuing, “because there was no reason he would take his badge out.”

Reynolds testified on the second day of Thomas Leftwich’s murder trial. Leftwich is charged with first-degree murder, conspiracy and felony use of a firearm in the shooting death of the 29-year-old Smith in the early-morning hours of Aug. 29, 2006.

Leftwich, 25, is claiming self-defense. According to his attorney, Mark Hobbs, Leftwich was afraid he was about to be robbed and thought Smith might be reaching for a gun.

Reynolds recalled the hours leading up to Smith’s death. The two off-duty officers and close friends went out for dinner and visited a number of Beckley nightspots. It was at the last spot they visited, Pikeview Lounge, Reynolds said, where Smith was approached by a man who Reynolds would later learn was Timothy Blackburn.

“Chuck came over to me and told me we had to go,” Reynolds told the court, explaining Blackburn had planned to buy narcotics from Raushan McDougald, who was well known to narcotics officers as “Jellybread.”

Reynolds and Smith by that time had been joined by Smith’s then-girlfriend, Jasminda Gonzalez, who went along with the two officers.

“(We had) no plans of arresting ‘Jellybread,’” Reynolds testified. “We planned to observe the incident … and start an investigation.”

Reynolds told the court “Jellybread” was never located, adding the men instead encountered Michael Martin, who offered to help them purchase drugs. Martin was convicted of murder in December and sentenced to life in prison.

“He said, ‘Are you looking?’” Reynolds said of Martin, explaining that was street slang for drug dealers. “I said, ‘No,’ and Chuckie said, ‘Yes.’”

Shortly thereafter, Reynolds said, Martin led the three, in Smith’s police vehicle, a Jeep Grand Cherokee, to a parking lot at the corner of South Fayette Street and Willow Lane.

Reynolds said Smith walked with Martin across Willow Lane to the foot of a stairwell leading up to a house on top of a hill, now known to be the Leftwich residence.

“Chuckie looks at me and says, ‘I’m in, I’m out,’” Reynolds recalled, explaining those words confirmed there would be only a transaction but no arrest.

As Smith and Martin stood at the base of the steps, looking up at an individual later identified as Leftwich, Reynolds heard what he called a “brief confrontation of words,” saw Smith reach into his pocket and show Leftwich his badge. He then heard “the first shot.”

After the shots were fired and both Martin and the gunman fled, Reynolds moved Smith across the street in an attempt to get him to safety, he said. He also moved the vehicle to use as a shield.

Reynolds testified he checked Smith to see what kind of wounds the officer had received.

“I check his heartbeat and his heart is beating really fast and it just stops,” an emotional Reynolds recalled. “I felt a warm substance running down my leg in my shoe.”

“Blood,” Reynolds responded when asked by chief deputy prosecutor Kristen Keller what that substance was.

Leftwich’s attorney, Mark Hobbs, questioned Reynolds as to how much alcohol he, Smith and Gonzalez had consumed, and why Gonzalez was with them.

Reynolds testified he consumed beer, but said he did not believe any of the three was intoxicated. He said he saw Smith consume only a small mixed drink with dinner.

Dr. Iouri Boiko, who at the time of Smith’s death worked with the state medical examiner’s office, told the court that of the four bullet wounds Smith received, the most damaging was to his left chest, which perforated both lungs and damaged his heart.

Responding to Hobbs’ inquiry of Smith’s .07 blood alcohol level at the time of his death, Boiko said he believed that BAC level was that of “practically a sober person.”

Dr. Michael Kelly, chairman of emergency services at Raleigh General Hospital, told the court the first EMS record after Smith was shot was at 4:32 a.m. and reported no cardiac activity, no blood pressure and indicated Smith was not breathing. Kelly said Smith arrived at the hospital about 15 minutes later and was pronounced dead at 4:56 a.m.

Raleigh County Sheriff’s Detective Cpl. J.C. Canaday and State Police Sgt. Craig Light testified regarding two search warrants obtained for the Leftwich residence in the hours after Smith’s death.

Based on information from Reynolds that the gunman had come from the house on the hill and had vanished in the same direction, Leftwich’s residence was searched.

During the first search, Canaday said, residents were removed from the home and Thomas Leftwich approached him, confessed he had shot Smith and showed him where he had hid the weapon.

Canaday read a list of items recovered from the residence during the two searches, including shirts, a cell phone, guns, ammunition, counterfeit bills and a bullet-ridden target of a police officer.

Matthew White, a firearm and toolmark examiner, testified the bullets that struck Smith came from Leftwich’s Smith & Wesson .357.

State Police Senior Trooper R.A. Daniel testified regarding “background” checks done on 19 weapons seized from the Leftwich residence.

Daniel said the murder weapon and two other weapons had been reported stolen. Two weapons, he said, were sold to Leftwich, and it was not determined if the others had been stolen.

Hobbs countered that person-to-person sales are not always noted and Daniel had no evidence proving the other weapons had been stolen.

The trial continues at 9 a.m. today.

— E-mail: mjames@register-herald.com

From the Beckley Register-Herald:

Note: In the article below, I bolded a quote from Judge Kirkpatrick that immediately stood out to me. He says that the previous blood-alcohol testing that was done for the prosecution was done by the State Medical Examiner’s Office, not by an expert chosen by the prosecution. Well, if you have read any of my prior posts regarding our State Medical Examiner’s office, you would know that the prosecution couldn’t hire a better expert for their side if they had unlimited funds to do so. Being that many things in our state are backwards, the State ME’s Office and the State Crime Lab are basically appendages of the police and prosecutors. When they testify at trial they are trained to slant the evidence and their testimony towards the prosecutors. They are hired guns basically. If anyone contests this, then I will be glad to give examples. The end result is that none of their conclusions can really be trusted without independent testing and independent experts looking over their shoulders. Just “google” the WV State Crime Lab and you will find examples of what I am talking about. - John H. Bryan, West Virginia Criminal Defense Attorney.

Leftwich loses bid to suppress evidence

Michelle James
Register-Herald Reporter

A Raleigh County judge Wednesday denied a motion from Thomas Leftwich requesting suppression of a search warrant and the evidence it allowed officers to obtain from the accused police killer’s South Fayette Street home.

Leftwich, charged with first-degree murder and conspiracy in the shooting death of Beckley Police Detective Cpl. Chuck Smith, is scheduled to go to trial March 10.

Defense attorney Mark Hobbs questioned the probable cause for the warrant, the second issued in the hours after Smith’s Aug. 29, 2006, death. That warrant led to the seizure of a numerous items, including a variety of weapons, ammunition, drugs, videotapes and computers.

Raleigh Sheriff’s Detective Cpl. James Canaday, who signed the affidavit for the warrant, and State Police Sgt. Craig Light, who carried out the search, testified as to probable cause during a pre-trial hearing Wednesday.

The officers told the court that items seen while carrying out the first search warrant led them to obtain a second warrant.

Circuit Judge H.L. Kirkpatrick denied Hobbs’ motion for suppression, telling him there was probable cause for the second search warrant and adding a second warrant was not actually needed and the officers were simply exercising “extreme restraint and caution.”

Kirkpatrick also issued a pre-trail order intended to determine “pending motions, as well as establish parameters of inquiry of witnesses and remarks of counsel.”

Through the order, Kirkpatrick denied Hobbs’ Feb. 21 motion to be supplied with a sample of Smith’s blood in order for the defense to perform its own testing to determine Smith’s blood-alcohol level at the time of his death.

The order mentioned chief deputy prosecutor Kristen Keller’s assertion that the “BAC of the victim is entirely irrelevant when a defendant claims self-defense.” Also, Kirkpatrick pointed out the previous blood test had been completed by the state medical examiner’s office, not an expert of the state’s choosing.

Kirkpatrick also denied Hobbs’ request to enter as evidence the City of Beckley’s general policy manual for police officers. In the order, Kirkpatrick stated there was no written guideline for policy and procedures for undercover operations and said a general policy manual would have no relevancy.

Also, because speculation became a problem during the trial of Leftwich’s co-defendant, Michael Martin, the order prohibits “sheer speculation concerning supposed motives attributable to the victim.”

Martin was found guilty of first-degree murder and sentenced to life without parole.

The order also states the court will not allow the victim’s character to be “trashed.”

Kirkpatrick’s order permits the defense to inquire about and address testimony pertaining to all activities and events surrounding the shooting.

State Police Capt. Scott Van Meter, left, looks on as chief deputy prosecutor Kristen Keller asks Raleigh County Circuit Judge H.L. Kirkpatrick to disallow any negative commentaries on the character of the late Beckley Police Detective Cpl. Chuck Smith Thursday during pre-trial motions in the Thomas Leftwich murder case. Leftwich is accused of shooting Smith to death during an Aug. 29, 2006, undercover drug operation.
Rick Barbero / The Register-Herald

From the Beckley Register-Herald:

Note: What the defense is getting at here is allegations that the victim narcotics officer was not acting entirely in the capacity of a police officer when this happened. It is claimed that the victim was at a bar drinking prior to the shooting, and that when the shooting happened, he was unarmed, and his girlfriend was in the car several steps away, along with his partner, who was also purportedly unarmed at the time.

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
Register-Herald Reporter

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: mjames@register-herald.com

From today’s Charleston Daily Mail:

Kanawha deputy demoted; another resigns

An internal police investigation has led to the resignation of one Kanawha County Sheriff’s deputy and the demotion of another, Sheriff Mike Rutherford said.

Sgt. Matthew Cummings has been demoted to the rank of corporal and placed on a 30-day suspension without pay, Rutherford said. Deputy James Young resigned Tuesday in the midst of an internal investigation, the sheriff said.

Rutherford said he could not talk about why the deputies were being disciplined. “As a result of previous court decisions, I can’t get into details about what the specifics of the investigation were,” Rutherford said.

However, sources familiar with the investigation said Cummings was originally charged with unauthorized use of county equipment and failure to report an accident after an incident in September.

Investigators believe Cummings, a county K-9 officer, took a county cruiser without permission and drove to his home, where his wife was staying. The couple had been having family problems and was temporarily separated.

Deputies found a visibly upset Cummings sitting in the cruiser outside the house. During his drive, Cummings apparently failed to report hitting a chain that caused minor damage to a parked trailer.

Rutherford said Cummings had never been in trouble in his 12 years in the sheriff’s department. “He has an exemplary previous record, and has never had a complaint filed against him,” the sheriff said.

Sources said Young resigned before county officials could complete an internal investigation. Investigators believe Young repeatedly lied to them about whether he knew about alleged illegal activity going on inside his home near St. Albans.

Note: I suppose that we will find out soon what he was being investigated for… One thing we do know is that all of this Trooper’s pending investigations and cases are going to come to a halt - if not disappear entirely. Defense attorneys will probably be able to access the documentation of the investigation that lead to his suicide, as it will be relevant to the admissibility of any evidence gathered. The suicide itself could also be admissible if any of his cases proceed to trial. It certainly would help the usually-unsuccessful “the police must have planted the drugs” argument. - John H. Bryan, West Virginia criminal defense attorney.

From today’s Charleston Gazette:

Police believe trooper death was suicide

By Gary Harki
Staff writer

A West Virginia State Police corporal was found dead Tuesday in an apparent suicide, shortly after his gun and badge were taken and he was notified that he was the subject of an internal investigation.

Cpl. V.J. Gall, 46, was found dead of a gunshot wound on the back porch of his home, said Joe Thornton, spokesman for the state Department of Military Affairs and Public Safety.

Gall was relieved of duty at about 6 p.m. Tuesday and told he would be placed on administrative leave on Wednesday, Thornton said.

After Gall was notified of the internal investigation, “his service revolver and badge were taken,” Thornton said. “Not a whole lot occurred after that. Apparently he left.”
Troopers at the detachment were soon called out on an unrelated incident, Thornton said.

After responding to the call, troopers returned to their detachment and discovered that Gall was not there. They then went to Gall’s house.

“The door was unlocked, they knocked and there was no response,” Thornton said. The troopers then found Gall on the back porch.

Gall is the second State Police officer to commit an apparent suicide in the past year. Marlo Gonzales, a 13-year veteran of the force, shot himself in July with his service weapon inside his police cruiser while outside his father-in-law’s house, police said.

Gall was with the department for 10 years, one in Martinsburg and the rest in Romney. He was not married and had no children, Thornton said.

Thornton would not comment on the details of the investigation of Gall.

“It was obviously serious enough to relieve him of duty pending further discovery,” he said. “A criminal investigation could have resulted.”

That investigation continues, he said.

“Quite honestly it has turned into a dual investigation,” Thornton said. “He was found in an apparent suicide, but we have to investigate the body being discovered. Not only do we have to investigate the job-related situation but also his death.”

Troopers went to Gall’s home not only to check on him, but also to “retrieve information for the pending investigation,” Thornton said.

The troopers, all of whom worked with Gall, were not the officers investigating his alleged professional misconduct, Thornton said.
“When he was relieved of duty he told them they could come to his house and retrieve information,” Thornton said. The information would be turned over to different investigators, he said.

Gall was to officially be placed on administrative leave Wednesday, when State Police Col. David Lemmon signed off on the order, Thornton said.

State Police have been studying law enforcement suicides since Gonzales was found in July. He was the first trooper to commit suicide since 1999.

A report released late last year on Gonzales’ suicide describes a man in emotional turmoil, one who had stopped taking his depression medication and who had suicidal thoughts at least a year before his death. It also describes a man unhappy with his job with the State Police and with his marriage.

“The department is still dealing with that,” Thornton said of Gonzales’ suicide. “Then we have this situation.”

State Police announced in January that they were working to implement yearly behavioral health screenings for troopers, based on recommendations from a panel studying suicides among law enforcement.

From today’s Herald-Dispatch:

Note: I posted previously about possible mandatory mental health screenings for WV State Troopers here. - John H. Bryan, West Virginia criminal defense attorney.

Apparent trooper suicide comes amid mental health policy changes

Feb 13, 2008 @ 01:43 PM
Herald-Dispatch.com

CHARLESTON, W.Va. (AP) — A 10-year West Virginia State Police veteran died of an apparent self-inflicted gunshot wound just hours after he was relieved of his duties.

The body of Cpl. V.J. Gall, who had been stationed at the Romney detachment in Hampshire County, was found at about 9:30 p.m. Tuesday, Department of Military Affairs and Public Safety spokesman Joe Thornton told The Associated Press on Wednesday.

The shot was not fired from Gall’s service revolver, which had been taken from him along with his badge a few hours earlier, said Thornton.

Thornton declined to say why Gall had been placed on administrative leave.

Gall, 46, was unmarried and had no children.

Gall’s death, which Thornton said will be investigated internally, is the second apparent West Virginia Trooper suicide in less than a year. Cpl. Marlo Gonzales shot himself July 18 outside his Putnam County home.

Gonzales’ death prompted Gov. Joe Manchin to ask for a review of suicides among law enforcement. Last month, the panel studying the issue recommended that troopers undergo yearly behavioral health screenings.

The panel also suggested that the agency do more to advertise available mental-health services and to help troopers and their families feel more comfortable about seeking treatment. Another recommendation was to train supervisors to identify people who may need help.

Thornton said the recommendations are still in the process of being implemented.

“The focus and idea is to implement all of them,” he said. “However, there are some that are going to be a little more time-intensive in terms of getting them up and running.”

From today’s Register-Herald:

Former detective seeks Summers County sheriff post

Edward Dolphin is seeking the Republican nomination for sheriff of Summers County.

Dolphin is retired from the Evesham Township (N.J.). Police Department with 25 years of service. During his service, he served as a detective first class, a patrol division supervisor and a motor vehicle accident investigator.

He also created and supervised the juvenile bureau, investigating juvenile crime and working within Evesham Township and Lenape high school districts.

He also worked with the Adopt-A-Cop Program placing officers within the school system.

During his service he received numerous commendations.

Dolphin served in the U.S. Navy and is a Vietnam veteran. He was also a member of U.S. Navy helicopter squadron HS75 from 1980-1982 serving as an air/sea rescue crewman and sonar operator.

He also served as a Military Police sergeant with the N.J. National Guard prior to Desert Storm.

He is a 1980 graduate of Camden County College, Blackwood, N.J., graduating with a degree in law enforcement and administration, Associate in Science degree in criminal justice.

He was also recognized for scholastic achievement by being placed on the permanent Deans list.

He is a current member of Fraternal Order of Police Lodge No. 56.

Dolphin says he believes he is well qualified to perform the duties of sheriff of Summers County.

He wants to provide the citizens of Summers County with experienced quality law enforcement and administration.

He feels the changing demographic situation in Summers County requires an administrator who can maintain the public trust and perform these duties on a professional level.

He is confident he can perform these duties and looks forward to working for the citizens of Summers County.

Dolphin is of the Methodist faith and he and his wife Judi attend church within the Talcott charge of the Summers County Parish. They are both members of The Burlington Center Auxiliary in Beckley.

They enjoy working with the Talcott “After School Program” sponsored by Trinity United Methodist Church of Talcott.

Note: Sometimes it is a good idea to place an outsider as Sheriff of a small county, especially one where law enforcement is distrusted. I always feel good about someone with years of professional service in law enforcement being elected Sheriff. A problem that you have in small West Virginia counties is that anyone can run for Sheriff. So, any local with a popular last name could become the person charged with protecting your family from harm. More importantly, if that person has ulterior motives, as many people do, it could lead to a disaster, in terms of corruption and the hijacking of the criminal justice system. Regardless, the people of Summers County have an honest prosecutor in Amy Mann and can take some comfort in her discretion in whether or not to prosecute particular cases. However, the other side of the coin is the Sheriff’s Department. People should think about these issues carefully before placing their votes. - John H. Bryan, West Virginia criminal defense attorney.

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.

From today’s Charleston Gazette:

State Police trying yearly behavioral health screenings

By The Associated Press

State Police are working to implement yearly behavioral health screenings for troopers, based on recommendations from a panel studying suicides among law enforcement.

Joe Thornton, deputy secretary of the state Department of Military Affairs and Public Safety, said the goal is to implement all of the committee’s recommendations, though time and resources may cause some delays in putting them into practice.

While the existing system, including confidential counseling services, is adequate, the panel says in its Jan. 2 report to Gov. Joe Manchin that more could be done, including erasing the stigma often associated wit