West Virginia Criminal Law Blog

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.

Although I stated in a previous post/rant about magistrate court in West Virginia that I do everything in my power to prevent having a bench trial in magistrate court (rather than a jury trial), I was forced yesterday to try a case in magistrate court.

The reason I was forced was this: my client initially requested a jury trial, but the court was dragging it’s feet in scheduling one and she wanted to get the matter over with. Against my advice she requested a bench trial instead. The good news was that most of the State’s witnesses did not show up, so I got two of the three charges dismissed. The bad news was that the officer could still testify to one charge. So we went for it.

We didn’t even get through the first witness’ testimony. The prosecutor objected to one of my questions on cross examination. As he was arguing his objection, the magistrate made the final ruling in the case. I was shocked. I hadn’t even had the opportunity to finish my cross examination, or the opportunity to call any witnesses, or the opportunity to have a closing statement, or the opportunity to discuss the case law. I think the prosecutor was dumbfounded as well.

Unfortunately for my client, it was the same magistrate as was featured in my last post, and my client never stood a chance. It was a kangaroo court - a farce - a miscarriage of justice. In short, it was a formality, a box to check. Well, at least you have the opportunity to appeal to circuit court…

Moral of the story? Request a jury trial. Unless of course, you want to be convicted.

- John H. Bryan, West Virginia Attorney.

From the Register-Herald today:

Monroe County prosecutor Rod Mohler has resigned in order to take a position as an assistant prosecutor in Greenbrier County. When that happens, it is up to the county commission to appoint a successor. It looks like the prosecutor-elect, Justin St. Clair, will be appointed by the Monroe County Commission at a special meeting today.

Justin is a very capable attorney and I’m sure will serve Monroe County with the utmost integrity and effort.

You can read the full article here.

- John H. Bryan, West Virginia Attorney.

From the Bluefield Daily Telegraph:

A Bluefield man facing first-degree murder in the 2007 shooting death of a another Bluefield resident entered into a plea agreement Tuesday in Mercer County Circuit Court.

Ronald Jerome Finney, Sr., also known as R.J., 53, pleaded guilty before Judge Derek Swope to a felony charge of voluntary manslaughter. Finney was indicted in February on first-degree murder in the Oct. 31, 2007 shooting of Donald Lamont Greene, 32, of Bluefield. Greene died as the result of a gunshot wound to the chest.

Finney was apparently claiming that he fired in self defense, stating that he was in fear for his life. However, the situation stemmed from him attempting to purchase crack-cocaine - not exactly a “clean hands” position to be in. Furthermore, his story was pretty shaky. Finney said in his statement that he waited outside [the drug dealer's house], and that Greene later came up to him, threatened him, and “he acted like he had something in his pocket, so I just shot him,” adding that he fired a second time when Greene “then tried to get something out.”

Finney must have been pretty believable though, because prosecutors gave him a pretty good deal - voluntary manslaughter - only carrying a determinate sentence of 3 to 10 years (compared with life for first degree murder, or up to 40 years for second degree murder). This was well-worth accepting in lieu of taking a chance with the jury and possibly facing life in prison.

You can read the full article here.

- John H. Bryan, West Virginia Attorney.

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.

From the Bluefield Daily Telegraph today:

Mario Goodson, 18, appeared Monday for a preliminary hearing before Magistrate Rick Fowler. Fowler found probable cause in Goodson’s case and bound him over to the Mercer County Grand Jury.

Both Goodson and Kenneth Dwayne Eaves, 19, of Bluefield are facing charges of conspiracy and first-degree murder in the Dec. 14, 2007 death of 28-year-old William Jerome Flack of Bluefield. Detective L.B. Murphy of the Mercer County Sheriff’s Department testified Feb. 8 that witnesses allegedly heard Eaves order a second person, Goodson, to shoot Flack.

Wow, that is a big surprise. Many West Virginians do not realize that if they are arrested on a felony, they are entitled to a preliminary hearing in front of a supposedly neutral magistrate to establish whether the police have probable cause to hold you in jail (or on bond) for the charges. They also don’t realize that this process is for the most part a farce, a formality. Preliminary hearings in West Virginia are a joke. The magistrates for the most part are not lawyers and have no legal training on what is and what is not probable cause. They, for the most part, have no idea what is and what is not admissible under the West Virginia Rules of Evidence (of course, there are exceptions).

The West Virginia Rules of Criminal Procedure allow for “relaxed hearsay” in preliminary hearings. This means that the investigating officer can come in and testify to some hearsay if there is a substantial basis for believing that (1) the source of the hearsay is credible; (2) there is a factual basis for the information furnished; and (3) it would impose an unreasonable burden on one of the parties or on a witness to require that the primary source of the evidence be produced at the hearing. Therein lies the problem. Many magistrates will just allow the investigating officer to come in and testify to anything and everything they were told throughout their investigation. Then, the magistrate will say, “well, probable cause is a very low burden, and they have met the burden… I find there is probable cause.”

For instance, I had a client who was charged with a absolutely ludicrous felony charge in Greenbrier County. His preliminary hearing was held by a magistrate in Greenbrier County. The State subpoenaed three witnesses: the investigating officer, and two very disreputable convicted felons whom had been caught red-handed and pointed the finger at my client to try and get a plea deal. They appeared and were waiting in the waiting room as the hearing began. The State called the officer first, and he proceeded to testify to almost entirely hearsay testimony - basically everything the other two idiots in the waiting room would have testified to. I objected to hearsay, reciting the above relaxed hearsay rule, but the magistrate basically said that all hearsay is allowed in preliminary hearings. Thus, the magistrate allowed the hearsay testimony despite the fact that the two idiots were in the next room, so the primary source of the evidence could have testified. Furthermore, they were extremely incredible. One of them was notorious in the county for being a career criminal, having spider web tattoos all the way up his neck. The lying officer however, grinned and testified that he thought the man was credible. I later told this to the Prosecuting Attorney, and he laughed and joked that everyone knew that this was the most incredible man in the county, perhaps the state.

As it turns out, when it came my turn to call witnesses, I obviously tried to call the two idiots in the waiting room, so that my client would at least have the opportunity to confront his witnesses. Believe it or not, the assistant prosecutor, on his first week of the job, objected on the grounds that they may be charging one of them with a crime and one may testify against the other, and that therefore there was a “use immunity issue.” I responded that it was irrelevant, and was the prosecutor’s problem and had no bearing on the hearing. The magistrate however, got really, really worried that she was going to make someone mad in the prosecutor’s office and decided not to allow me to call any of the witnesses that had been subpoenaed to the hearing and were waiting in the next room. Then, that was it: she found probable cause and we were not allowed to call any witnesses. This was an absolute disgrace to our criminal justice system. Imagine if it were your son or daughter that was treated like this.

Fortunately this client was able to make bail, as his case was never even brought to the grand jury. If it were some poor sap who didn’t have any money, he would still be sitting in jail thanks to this meaningless system of magistrates conducting preliminary hearings.

By the way, these same non-lawyer judges are the ones who make decisions on whether or not the police have probable cause to be issued warrants to search your home - or to arrest you. Yes, it’s very scary and very unjust.

Read the full article here.

- John H. Bryan, West Virginia Attorney.

From the Charleston Daily Mail:

A Montcalm High School teacher accused of having a relationship with a student faces sexual abuse and abduction charges.

State Police First Sgt. Gary Tincher says 30-year-old Christi Lee Williams was arrested in late April.

Williams remains free on bond after being charged with sexual abuse by a parent, custodian and guardian and abduction of a student within 1,000 feet of a school.

Tincher says Williams is accused of having a relationship with a 16-year-old male student who allegedly left school property with her.

Tincher says the teacher has been suspended from her job.

What is the deal with young, attractive teachers across the country having these sexual relationships with young boys? I can’t remember hearing anything like this when I was in high school - other than in a Van Halen song.

Let’s look at the charges: First, abduction of a student within 1,000 feet of a school. Okay, that charge is garbage. The kid was 16 - old enough to drive, and actually 16 is the age of consent. The allegations are that he went willingly. Prosecutors and legislators can make up whatever law and charges they want, but the fact is that there was no abduction. This is just a garbage charge to help them get a plea.

Secondly, sexual abuse by a parent guardian or custodian. This is the most abused and misused charge on the books. The reason is this: in almost every situation, like it or not, the legal age of consent in West Virginia is 16 years old. That means that ignoring relationships, this 16 year old kid can have sexual relations with whomever he wants. However, if there is a relationship, then all of a sudden the other party goes to prison for 10 to 20 years. That’s right, that is the punishment for this charge (something that you are not allowed to tell the jury). So, if the prosecutor alleges the other party is a babysitter, teacher, whatever - even if the kid is 16 or 17 and has his own car and drives all over the place, it then becomes punishable by 10 to 20 years. This is an abuse of the law. The charge was meant to cover awful situations where parents or actual guardians abuse children under their care. The problem is that the statute was written much to broadly, thus allowing police and prosectors to abuse it. For instance, this woman is facing 10 to 20 on that charge. Under the statute, technically, she can be convicted on it. The jury never gets to know that she will get 10 to 20. They will assume she will get probation, or maybe 6 months or a year. She will get convicted on the charge, despite the unfairness of it. The end result is, that her lawyer will most likely advise her not to take the chance of going to trial, and to accept the plea offer of misdemeanor battery with a sexual motivation, or something like that, which will put her in jail for a year and make her a registered sex offender for life.

Read the full article here.

- John H. Bryan, West Virginia Attorney.

From the Charleston Gazette today:

Nicholas County’s prosecuting attorney was charged with DUI on Sunday after wrecking his car in a single vehicle accident in Webster County. Mark Hudnall was elected Nicholas County prosecutor in 2004 by a narrow margin over James “P.K.” Milam. He is running for re-election this year, and faces Milam and Keith W. McMillion in the Democratic primary next month.

What a poor decision to make generally, but on the eve of an election? Being the elected prosecutor of a county, and charged with the duty to prosecute individuals for violations of the law, including DUI, he ought to make a public comment in the next day or so - either apologizing or proclaiming his absolute innocence (in which case it better be the truth). In any event, what a lucky break for his Democratic opponent.

Read the full article here.

- John H. Bryan, West Virginia Attorney.

From the Register-Herald today:

Its no big surprise that after just under two hours of deliberations, the jury of seven women and five men found Gary D. Martin, 57, of Stringtown Road, guilty of two counts of first-degree murder and one count of second-degree murder.

Obviously the jury didn’t buy the self defense argument. However, they did find Martin guilty of second-degree murder for killing the victim that had the gun in the holster. Thus, the jury was not convinced beyond a reasonable doubt that Martin killed that particular victim with premeditation. They were convinced with respect to the other two victims however.

This result is no surprise given the evidence. However, I was surprised to read what Fayette County Prsoecutor Carl Harris “thundered” in his closing argument. The Register-Herald quoted him saying as follows:

“Only two people are alive at the end of that day because the other three are dead,” Harris thundered in closing arguments. “This is a weapon for killing,” he added, holding up the AK-47. “This is not a weapon for target practice. This is a military weapon. You don’t pull out a pistol when you’re facing a weapon like this. Self-defense (as a legal defense) doesn’t work when you shoot someone in the back.”

According to Carl Harris, an AK-47 is only a “weapon for killing” and cannot be used for target practice as it is purely a “military weapon.” Carl Harris should be ashamed of himself. Law-abiding citizens across the State of West Virginia own so-called “assault weapons” such as AK-47s and AR-15s, which they do use for target practice, self defense, or just to collect. It is just a semi-automatic rifle, similar to many others that West Virginians and other Americans own and use across the country every single day. Attention Fayette County residents: hide your guns because Carl Harris is probably looking to prosecute you for harboring “weapons for killing.” Don’t try to get some target practice in, you may end up in prison. Carl Harris needs to realize that it is perfectly legal to own that particular gun, as well as many others, and he needs to keep his anti-gun feelings to himself, and out of the courtroom.

Read the full article here.

- John H. Bryan, West Virginia Attorney.

Yesterday Richard Workman, 40, of Summersville, West Virginia, was acquitted on charges of first-degree sexual abuse and sexual abuse by a parent guardian or custodian after a jury trial. The jury deliberated less than an hour before returning the not guilty verdict.

Reportedly, there was no physical evidence corroborating the testimony of the alleged victim. The alleged victim, who testified, was ten years-old. Assistant prosecutor Kelly Hamon said during closing arguments the girl had no reason to lie or to make up a story about Workman. Hamon also said Workman had two years to work on his story and was unable to testify without the aid of a written time line.

These are the most frightening cases imaginable. These charges will put people in prison for the same amount of time as first or second degree murder. However, unlike murder cases, the State does not collect a large amount of evidence. Prosecutors often rely solely on the testimony of alleged victims. The problem is, that without corroborating evidence, how can that be evidence beyond a reasonable doubt? Prosecutors like to rely on the argument that the alleged victim “had no reason to lie or to make up a story” about the defendant. The fact is, that it has been documented time and time again that some children will lie and make things up. Does it matter why they are doing it? No, it only matters that they could be making it up and there is no corroborating evidence.

In these types of cases (in West Virginia), the defense can give a special instruction to the jury - called a “Perry Instruction” informing the jury that if they believe that the testimony of the alleged victim is uncorroborated, they should scrutinize that testimony with “care and caution.”

This case is very similar to a case that I tried earlier this month, after which my client was also found not guilty. People don’t realize that in order to be found “not guilty,” all 12 jurors have to unanimously return a verdict of “not guilty.” Needless to say, it can be very difficult to get 12 people to agree on anything. The goal of the defense attorney in these cases is to pound into the jurors’ heads the fact that the prosecution has the burden of proof to prove the defendant guilty “beyond a reasonable doubt.” This is not always an easy job, because jurors want to listen to the alleged victim testify, and then listen to the defendant testify (which, by the way, the defendant almost always has to testify in these cases) and then compare the two. They tend to choose the one they most believe. Their duty, however, is to compare the alleged victim’s testimony and the state’s lack of evidence against the “reasonable doubt” standard - which in reality should be a difficult burden for the state.

However, for every acquittal, there are probably several others who are wrongfully convicted on evidence that was far less than a “reasonable doubt.”

Read the entire article from the Register-Herald here.

- John H. Bryan, West Virginia Attorney.

From 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

From today’s Register-Herald:

Prosecutor: Bus driver’s alcohol level was higher than field test showed

– MONROE COUNTY

By Christian Giggenbach
Register-Herald Reporter

UNION — Medical tests have revealed the blood alcohol level of a Monroe County school bus driver charged with DUI following an accident in February was considerably higher than his preliminary on-scene breath test, a prosecutor said Tuesday.

Clyde Watson Jr., 62, of Union, appeared briefly before Monroe County Magistrate Nancy Crews for a pre-trial hearing and was represented by Gap Mills lawyer Geoffrey Wilcher.

State Police charged the 14-year veteran school bus driver with DUI with minors in a vehicle after he crashed his school bus down a 120-foot ravine with 11 children aboard on Feb. 5.

School officials said Watson over-corrected his steering after running off the right side of the road and then slammed through a telephone pole before plunging down the ravine and finally coming to rest over a small creek. No children were injured in the accident.

County Prosecutor Rod Mohler told Crews a “plea agreement has been offered” to Watson which allows the defendant to plead guilty “as charged.”

“Based on Mr. Watson’s years of community service, the state will not object and would be willing to agree to the minimum sentence and fine,” Mohler said. “I think Mr. Watson wants to take some additional time to think over what has been offered and the state will not object.”

Two days after the accident, Watson apologized for his actions in a letter to the school board and also tendered his resignation. In the letter, Watson said he had “hit rock bottom” the morning of the accident and had “an ongoing alcohol problem.”

Mohler’s case against Watson was strengthened greatly after the defendant’s blood test showed a .093 BAC level nearly two hours after the accident.

A preliminary breath test at the scene indicated a relatively low level of alcohol, about .022. Preliminary tests cannot be used as evidence in a trial. However, a blood test can be used as evidence and Watson’s new BAC is higher than the state’s .08 legal limit. After a person’s BAC level reaches .08, a driver is “presumed to be impaired” under West Virginia law. A state CDL regulation requires drivers to be under .04.

Watson did not speak and quickly exited through the back door of the magistrate’s office with family members after the five-minute hearing.

Mohler called the new BAC reading “substantial” and said it puts to rest other issues that previously were raised concerning the accident. At the time of his arrest, Watson told police he had taken the cold medicine Nyquil, which contains alcohol, the night before the accident. Mohler had previously indicated the defendant may also have been diabetic.

“This also takes any health issues out of the picture as the cause of the accident,” Mohler told The Register-Herald after the hearing.

Crews tentatively scheduled another hearing in 30 days. If convicted, Watson faces two days to 12 months in jail and up to a $1,000 fine.

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

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 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.

From the Beckley Register-Herald:

Truck driver indicted in fatal wreck

Chrissy Boone
Register-Herald Correspondent

SUMMERSVILLE — A grand jury called by a special prosecutor has indicted a Pennsylvania truck driver in connection with an accident in Nicholas County a year ago that killed a Fayette County man.

The grand jury indicted Richard Cyphert, 34, of Knox, Pa., on charges of negligent homicide and failure to maintain control in the Feb. 27, 2007, death of Tommy F. Ramsey Jr., 30, of Edmond, on U.S. 19 near Mount Lookout.

Special prosecutor Tom MacAulay of Raleigh County presented the case to the grand jury. MacAulay was assigned to the case after Ramsey’s family persisted in pursuing charges against Cyphert. Nicholas County Prosecutor Mark Hudnall declined to present the matter to a grand jury, stating he did not believe there was enough evidence to support a conviction.

According to the accident report completed by Nicholas sheriff’s Cpl. Walter Shafer and Deputy Jarod Lane, Ramsey, driving a pickup truck, was following a tractor-trailer driven by his cousin, Eddie Orval Ramsey Jr., 26, of Edmond. Eddie Ramsey’s tractor-trailer had experienced mechanical problems earlier, and both he and his cousin were traveling south on U.S. 19 at about 50 mph with their flashers on.

The accident report said Tommy Ramsey’s pickup truck was then struck in the rear by Cyphert’s tractor-trailer, pushing the pickup into the back of Eddie Ramsey’s tractor-trailer.

The accident report said the roadway was dry and weather conditions were clear. Cyphert was not cited.

Negligent homicide is a misdemeanor that carries a penalty of a year in jail.

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.

From today’s Beckley Register-Herald:

Bus driver’s medical condition probed

Christian Giggenbach
Register-Herald Reporter

Prosecutors say they are investigating a possible medical condition with a Monroe County school bus driver charged with DUI following a bus crash involving 11 children Tuesday.

A well known Charleston DUI defense lawyer also said the bus driver should never have been charged with DUI because his preliminary breath test proved he was not intoxicated.

Monroe Prosecutor Rod Mohler told the Register-Herald on Thursday the case against Clyde Watson, Jr., 62, of Union, was moving forward with “extreme caution” because of the accident.

State Police arrested Watson and charged him with DUI while transporting minors. Watson’s bus crashed down a 120-foot ravine with 11 children aboard about 7:20 a.m. near the Monroe-Greenbrier county line. There were no injuries were reported.

“What little we know is at this point there was a trace level of alcohol in his system,” Mohler said Thursday. “Even at that low level, you can still be considered under the influence. However, there are some issues that need to be explored regarding whether (Watson) might be a diabetic and how alcohol of any amount would affect his system and be shown on a breath test.”

Watson was administered a preliminary breath test by a Greenbrier County sheriff’s deputy which found a .022 level of alcohol in his body.

Mohler said the case would be “explored fully and completely” to determine whether Watson was “criminally responsible regardless of his condition.”

A phone listing for Watson could not be found Thursday.

Watson told police he had taken Nyquil, which contains alcohol, the night before and felt “funny” just before the accident.

School officials said Watson previously had a spotless 14-year safety record as a bus driver. Superintendent Lyn Guy said Watson was suspended from his job pending the resolution of the DUI charge.

Although .08 is considered the legal limit for driving under the influence, State Police Trooper J.L. Cooper said a person can be charged with DUI for much lower levels if alcohol impairs the ability to drive.

“You have to justify that the alcohol limit caused the impairment,” Cooper said.

Barbara Allen, a deputy with the state attorney general’s office, said any driver with an “appreciable measure of alcohol” can be charged with DUI.

“Once a driver’s alcohol level reaches .08, you are presumed to be under the influence,” Allen said Thursday. “If the level of alcohol is below that, you can still be found guilty if a jury concludes based on all the facts and circumstances that your ability to drive was impaired because you were under the influence of alcohol.”

But the question remains whether Watson’s reported .022 alcohol level is enough to justify a DUI conviction, Charleston lawyer Carter Zerbe said, and whether Watson was under the influence at all the morning of the accident.

“The .022 level is so low that it is evidence in and of itself that the bus driver was not under the influence of alcohol,” Zerbe, who is among the state’s top DUI defense lawyers, said Thursday. “I don’t know what basis there was for charging this bus driver for violating that section of the law.”

Zerbe said preliminary tests are not admissible as evidence at trial. In Watson’s case, a second, more reliable test was not given because too much time had elapsed from the first breath test, according to the criminal complaint.

However, hospital records containing Watson’s blood tests are being subpoenaed to determine what levels, if any, there were of alcohol in his system, police said Wednesday.

“If the initial breath test was .022 and if it was accurate,” Zerbe said, “I would imagine the blood test will be exculpatory.”

A hearing in the case is expected to be scheduled next week. If convicted, Watson faces two days to 12 months in jail and up to a $1,000 fine.

Note: The first time I read the article, I thought it said he had a .22 BAC - which is common in black-out type situations. Upon reading the updated article and re-reading the prior article, I noticed that it said “.022.” Having formerly prosecuted DUI’s in North Carolina (actually they are called DWI’s) I agree with Mr. Watson’s lawyer that there is no way this man can be charged. First of all, since he is a bus driver, he could be charged if he registered a .04 BAC. However, the preliminary field sobriety test is not admissible in court, so he could not be convicted even if the field test read over a .04 - which it didn’t. They would have to have an intoxilyzer result that is admissible - which doesn’t exist in this case. Lastly, it would not be fair to put this man before a jury when the only evidence of intoxication is the accident itself. - John H. Bryan, West Virginia criminal defense attorney.

See UPDATE here.

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 the Beckley Register-Herald:

3 charged in multimillion-dollar cattle scandal involving bank

Christian Giggenbach
Register-Herald Reporter

Ending months of speculation and rumors, the U.S. Attorney’s Office in Charleston filed criminal charges Wednesday against a businessman, a former bank president and a former bank board member for alleged crimes stemming from a multimillion-dollar cattle scandal in Greenbrier County involving First National Bank of Ronceverte.

Named in the information were Kevin Scott O’Brien of Ronceverte, Charles A. Henthorn of Lewisburg and G. Thomas Garten of Covington, Va. An information allows prosecutors to bypass a grand jury and usually indicates a defendant is cooperating with authorities.

O’Brien, 27, was charged with one felony count of frauds and swindles, according to court documents. O’Brien first made headlines in April 2006 when State Police began investigating the cattle broker after he filed a multimillion-dollar bankruptcy case.

Federal prosecutors say O’Brien brokered the sale of cattle in Greenbrier and Monroe counties and several other locations, including Virginia, Illinois, Nebraska and Texas, under the business names of Shamrock Farms and K&M Properties Investments.

Prosecutors allege O’Brien devised “schemes” to “defraud and obtain money by means of false and fraudulent pretenses” while selling cattle “at the expense of numerous farmers, banks and other business entities.”

The five-page criminal charge against O’Brien alleges in the spring of 2006 he under-reported his liabilities and distributed false financial statements to lenders and investors and “solicited and procured substantial sums of money” with the “false promise that he would invest the monies in specific cattle sale transactions.”

“It is further part of the scheme that (O’Brien) defrauded these various investors and lenders out of a total of approximately $4.2 million,” federal prosecutor L. Anna Forbes wrote.

O’Brien also allegedly engaged in “phantom herding” — selling the same group of cattle to multiple buyers — and pyramid schemes, where money from one investor is used to fund business dealings with another investor. Other allegations lodged against O’Brien include:

- Giving Henthorn, former First National Bank of Ronceverte president, bribes totaling approximately $10,000.

- Tendering worthless checks for large amounts of money.

- Directing banks to stop payment on checks for the purpose of quelling the investors’ mounting suspicions of fraud and to dissuade investors from reporting him to police.

- Engaging in check-kiting activities involving hundreds of thousands of dollars with various financial institutions to stave off financial disaster.

O’Brien could not be reached for comment Wednesday. If convicted, he faces a maximum sentence of 30 years in prison, with five years of supervised released and a possible $1 million fine.

Henthorn, who abruptly resigned as president and CEO of First National Bank of Ronceverte last June, was charged with one felony count of accepting bribes from O’Brien totaling about $9,700. Henthorn, a former bank examiner, had worked at the bank more than 10 years, starting out as a senior loan officer and vice president.

“(Henthorn in his capacity as bank president) did accept said payments by a customer … intending to be influenced in connection with business and transactions between (O’Brien) and the First National Bank,” Forbes wrote.

When reached by phone Wednesday, Henthorn refused to comment. Court documents indicated the bribe payments were paid in the fall of 2005 through December 2005.

Garten, who had served on the bank’s board of directors since 1999, resigned last July. Garten was charged with one felony count of aiding and abetting the bribes that O’Brien gave to Henthorn. The criminal charge did not state that Garten received any bribe money from O’Brien.

Garten, a Realtor, broker and auctioneer, owns Greenway’s Real Estate & Auction Co. and two car dealerships in Covington. When reached by phone Wednesday, he respectfully declined to talk about his pending charges.

“Everything will work its way out in the end,” he said.

Both Garten and Henthorn face maximum prison sentences of 30 years each, five years of supervised release and possible $250,000 fines.

First National Bank chair Ron Snyder, who was out of town Wednesday, told The Register-Herald by phone he had not yet seen the charges leveled against his two former bank associates, but was “relieved to see this finally out in the open.”

“We are happy that this has finally been filed and now the rumors can either be quashed or reinforced,” Snyder said. “We understand the only wrongdoing were by the actions of these two individuals and this bears that out because they are the only ones that were charged.”

But left in the wake are nearly a dozen individuals, banks and businesses that O’Brien allegedly defrauded for millions of dollars. Lewisburg lawyer Steve Hunter, who represents Karin Nelson — who claims O’Brien cheated her out of more than $200,000 — said there are still many unanswered questions that need to be addressed.

“There are still pending motions left in the bankruptcy case. I still don’t think we have gotten to the bottom of this whole story and we won’t know until O’Brien is questioned under oath by lawyers representing the victims,” Hunter said Wednesday. “We still don’t know whose cattle went where and there are a lot of people who are out of a lot of money.”

Creditors named in O’Brien’s bankruptcy case include The Bank of Monroe, United Bank and Farm Credit of Lewisburg. These alone total $2.5 million. During his initial bankruptcy filing, O’Brien stated he owed First National Bank nearly $400,000. One Virginia cattle dealer filed worthless check charges against O’Brien two years ago totaling 270,000.

In August 2006, O’Brien attended one bankruptcy hearing after skipping out on several others. At that time, he invoked his Fifth Amendment right against self-incrimination more than 100 times.

Hearings to accept pleas from the three men will most likely be set in the next five days.

Note: Since the three men who were charged were charged by information rather than by indictment through a grand jury, it indicates that all three have made plea deals with the government already. Indeed, speculation for months has been that all three of these characters had in fact already made plea agreements. It has been noted through the grapevine that one of the defendants either wore a wire or had a recorded telephone conversation with the other - ensuring his conviction. With all of the rumors flying around, it will be interesting to see which of them are true. The fact of the matter is that when you are charged federally, your chances of not going to prison are extremely, extremely low. So, it is safe to say that all of these guys are going to do time in the federal pen - and deservedly so. - John H. Bryan, West Virginia criminal defense attorney.

From the Register-Herald today:

Plea rejected for woman accused of robbery

Michelle James
Register-Herald Reporter
A plea hearing went awry Wednesday when the defendant admitted to Raleigh County Circuit Judge H.L. Kirkpatrick she was only taking the plea because she wanted to go home, not because she thought she had done anything wrong.

Bridget Rene Sizemore, 33, of Beckley, was expected to plead guilty to first-degree robbery in connection with a March 31, 2006, incident during which she allegedly broke into a Bolt residence and attempted to steal a woman’s purse at knifepoint.

At the time of the alleged crime, Sizemore was on probation for a forgery conviction. By entering a guilty plea Tuesday, Sizemore would have been sentenced to probation for the robbery and her probation for forgery would have been revoked with the underlying sentence of one to 10 years reinstated.

Sizemore, who said she was under the influence of drugs at the time of the incident, did admit to grabbing the victim’s purse but said she was not trying to rob her.

Kirkpatrick told Sizemore he could not accept the plea and told her he believed “it would be best to just set the matter for trial.”

Sizemore was returned to jail and a trial date will be set.

Note: Defendants are forced to take plea agreements all the time despite their claim of innocence. The issue isn’t always is the person “guilty” or “innocent.” There are books and books full of technical crimes. A person could be charged with two or three different crimes for doing the same thing, just depending on what kind of mood the prosecutor was in. One crime could bring a sentence of up to one year in jail… the other crime could carry ten to twenty years in prison - mandatory. Thus, in this woman’s situation, she may not have actually “robbed” the lady, but the State may have a statement from her whereby the police officers carefully got her to unknowingly admit to each and every element of robbery, thus ensuring her conviction of “robbery” rather than simple larceny, which would be a misdemeanor. The point is, that nobody cares about her motives for pleading to a lesser unless the defendant states something in open court that could bring problems if the case ever crossed the bench of an appellate court. - John H. Bryan, West Virginia criminal defense attorney.

As detailed in the Smoking Gun, this morning, disbarred former Durham County, North Carolina prosecutor, Mike Nifong has filed for bankruptcy, listing over 180 million dollars worth of liabilities due to pending lawsuits by the Duke lacrosse players.I practiced juvenile criminal defense in Durham County, North Carolina for one year. In fact, I was there when the lacrosse investigation began. I remember thinking that it was disgusting that Nifong appeared on television and called the “suspects” hooligans and otherwise prejudiced them in the court of public opinion - and this was extremely early into the investigation. I remember saying to somebody that the public should have some type of protection against rogue prosecutors such as Nifong. I never would have believed that he would end up getting disbarred. We should all applaud the great State of North Carolina for sticking it to him and making a great example out of him.But, the fact is, that this happens all the time. Sadly, when it happens to poor people, who cannot spend millions of dollars on expensive and exclusive criminal defense attorneys, it goes completely unnoticed.Don’t get me wrong, I hate Duke as much as any other UNC Chapel Hill alumnus, but no one deserves to be used as pawns in a DA’s race-baiting reelection campaign. - John H. Bryan, Attorney at Law