News coverage of high-profile criminal cases continues to disappoint

I have posted before about the danger that ignorant media coverage poses to criminal cases – especially TV news coverage.  The reporting is just awful.  One particular local channel brags that they are helping law enforcement clean up the criminals out of our community.  In reality, they are just posting mugshots and reading law enforcement press releases.

I was in court yesterday for a pretrial hearing in a high profile southern WV case.  Up to that point, the media had not appeared at the prior court hearings – most likely because they didn’t know about them.  Somebody had apparently tipped them off about the hearing taking place.  Some prosecutors, when they realize that their plea offer is not going to be accepted and that they are going to have to try the case, will get the media involved which effectively poisons the jury pool.

The TV news crew filmed the hearing, obviously taking careful notes about what was being said (I say that sarcastically).  Instead of broadcasting the audio from the hearing, they substituted their reporter’s voice, which was completely misstating the substance of the hearing.  Then, as my client and I were leaving the courtroom, they ambushed us putting cameras and microphones in our faces.  The reporter asked, “what do you want to tell the victim’s family?”

The funny thing about this is that 30 minutes earlier we were all quietly sitting in the courtroom, along with other attorneys and defendants, waiting for the judge to appear.  They had every opportunity to film my client at that time.  They had every opportunity to request an interview or a statement, or whatever.  They had every opportunity to ask questions about where the case was heading.  I’m not saying they would have gotten any information from us, but they made no attempt.  They are obviously not interested in the facts, just sensationalism.

Two more thoughts of the day: 1) Without video proof, police misconduct didn’t occur; 2) Sex offender registration mania is out of control

It blows my mind that this is on video, but it is.  A scumball cop in Ohio abused his authority and violated the civil rights of an innocent citizen.  He basically threatened to execute the guy, etc.  Of course the poor guy is then prosecuted for “failure to notify” that he had a concealed weapon permit and was carrying.  I heard through the grapevine that in the criminal prosecution which ensued (of the victim of course – not the cop) the prosecutor offered to dismiss the charges if the victim/defendant signed a release of liability foreclosing any possibility of a lawsuit over civil rights violations.  If this is true (and I have no proof that it is), the prosecutor should be prosecuted for attempting to cover up a crime.  I just found this statement from the police chief in that jurisdiction:

I want to assure our citizens that the behavior, as demonstrated in this video, is wholly unacceptable and in complete contradiction to the professional standards we demand of our officers. As such, appropriate steps were placed in motion as dictated by our standards, policies and contractual obligations. Those steps included: The officer immediately being relieved of all duty. The incident has been referred to the Internal Affairs Bureau for what will be a complete and thorough investigation. As bad as the video indicates our officer’s actions were, there is a due process procedure to follow. That process is designed in the best interest of both our employees and the citizens at large. That process will be followed in this case as in all others. Anyone shown to be in violation of our rules and regulations will be help appropriately responsible as dictated by all the facts. ~Chief Dean McKimm

The 800 pound gorilla in the room is this: if the video did not exist, nobody would believe the victim.  And it blows my mind that the video was recovered.  By the way, if you watch the video, take note of the illegal search of the backseat of the car which happens almost immediately after the stop.  This sort of garbage happens all the time.  After the fact the cops will claim to have received consent to search the vehicle.  There was no consent, and there was no probable cause to search.

Secondly, there is a story out today about 14 year old boys being required to register as sex offenders due to a high school prank.  It’s time to tell the whining hippy women and the “new-castrati” that enough is enough with this sex offender garbage.  Of course it has its place with real sex offenders.  But this has gotten out of control.  I’m tired of seeing this ruin the lives of good young people.  The sex offender laws are too broad.  Then once we label good people as “sex offenders”, it ruins their lives.  Not only this, but it waters down the real purpose of having registered sex offenders.  So what’s the point?

If you were wondering what the law is in West Virginia, it is basically this: if there is any conviction of an individual and the presiding judge makes a finding that the offense was “sexually motivated” in any way, that person then becomes a registered sex offender.  It doesn’t have to be an actual sex offense charge.

The Federal Officer Removal Statute 28 U.S.C. 1442(a)(1)

Here is a recent filing in the United States District Court for the Southern District of West Virginia.  It has to be one of the oddest things I have ever done in the realm of criminal defense.  Most lawyers know that a civil case in state court can be removed by the defendant(s) in certain circumstances.  In fact, most plaintiffs lawyers in West Virginia, usually myself included, do everything they can to avoid such a scenario.  But did you know that in certain instances, state criminal prosecutions can be removed to federal court?  Well it’s true.  Similar to being a plaintiff in the 4th Circuit, usually it would be a really bad idea to handle a criminal case in federal court rather than in state court.  Defendants almost always get hammered in federal criminal prosecutions.  But conceivably there are situations where you do want to be in federal court – especially one in which state court officials (e.g., prosecutors/magistrate judges) have formed a lynch mob and are going after your client.

28 U.S.C. 1442(a)(1) is known as the federal officer removal statute, and allows state court cases of almost any sort to be removed (forcibly) to federal court.  It is usually used in civil cases. For instance, if you were to try to sue an FBI agent in state court, it would quickly make its way to federal court using this removal statute, and it would be there about 5 seconds before being dismissed.  But 1442(a)(1) also allows for state criminal prosecutions to be removed.  It has rarely been used, mostly because scenarios which would invoke it rarely occur.  It requires that a federal officer be charged with a crime in state court, and that he or she have a colorable federal defense (usually federal immunity) to the charge.

In our scenario, my client does indeed have a colorable federal defense – LEOSA (Law Enforcement Officers Safety Act).  Passed in 2004, it allows current or required qualified law enforcement officers to carry concealed weapons notwithstanding any state or local laws to the contrary.  My client is a federal law enforcement officer and was charged with carrying a concealed weapon. The arresting state cop and the state prosecutors have claimed complete ignorance of the federal law.  And since it is a misdemeanor, it has been in the West Virginia magistrate court system, which in this case at least, equaled complete ignorance and disregard for federal law.  Using 1442(a)(1) I was able to file a Notice of Removal in federal court, which barring a remand by the federal judge, will completely divest the state courts from jurisdiction over the prosecution.

Between the civil lawsuit we filed over this, and the protracted criminal litigation (which is on its way to a state record for volume of misdemeanor litigation) it is mind numbing that state prosecutors and law enforcement would dedicate so many resources and expenses in order to secure a misdemeanor conviction on one person.  Beware, cross your local authorities and you could be next.

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Media coverage of criminal cases in WV and mercy for good people

Several years ago, and again recently, I discussed my frustration at the lack of impartial coverage of high profile criminal cases in West Virginia by TV news media.  If you watch our local news around here you will notice two things: lots of mugshots and lots of interviews of police officers.  That’s just about all you will see.  Of course there are two sides to every story, but you will never, never hear them.  You will only hear the law enforcement side.

Recently I became involved in just such a case.  The media got involved and started broadcasting stories that just did not portray the situation accurately.  They were causing a big stink and provoking people to call the prosecutor and law enforcement to demand that the book be thrown at my client.

The client is a good person; well-liked by just about everybody who knows him.  He has never been in trouble before.  He was studying to become a police officer.  In fact, he was days away from getting a job as a police officer when the news station decided to ruin his life.  He was volunteering at a local school with the marching band.  He has a concealed weapon permit and had a pistol in his truck.  His truck broke down on school property and he had to hitch a ride home with a friend.  So he made the mistake of taking the pistol out of his truck and taking it with him.  He made the further mistake of showing his friend the pistol as he was taking it out.

Subsequently, the principal was apparently reviewing surveillance footage of the school grounds, and observed the gun.  Band director gets fired for having an unauthorized volunteer.  The media picks up on it, and eventually people think we have just narrowly-avoided a Columbine incident.  A crazy man wielding a gun at a local school.  Somebody has to pay.

I encountered the TV reporter in the courthouse.  She informed me that she had uncovered the identity of the gun-wielding volunteer and was going to run a story on it that evening.  I then offered to give an interview to try and set the record straight.  So I did, and I explained the accurate circumstances, on video.  Of course when the story was run that night there was a lengthy interview of a sheriff’s deputy explaining that my client had committed a felony and they were going to charge him for it.  They also broadcasted his name, age, and the location of his residence.  And that was it.  Nothing else.  No explanation from me.  They chose not to include any of my interview.  Of course I wasn’t surprised.  That is how it usually goes.  When your client is charged they show his mugshot and broadcast his name and other information.  When he is acquitted it goes unmentioned.

The reason is this: if viewers were to hear my explanation, they would say, “Oh, what’s the big deal about that? They are going to charge this kid with a felony and ruin his life over that?”  The story would lose its sensationalism.

Certainly the argument could be made that law enforcement and the prosecutor have no choice.  The guy was caught on video possessing a firearm (unloaded) on school property.  There is a statute in West Virginia that makes it a felony, with a 2 to 10 prison sentence and no opportunity at probation or parole for possessing a gun on school property, whether or not unloaded, or on any property upon which a school function is occurring.  To contrast that with other crimes, that is the same penalty for wanton endangerment with a firearm, which is like shooting a gun at somebody and missing.  Brandishing a firearm, which is like pointing a gun at somebody but not firing, is only a misdemeanor with a maximum sentence of one year.  So to a certain extent we can blame the legislature for creating an overbroad and unfair law.  And I do blame them.  Most of them are too cowardly to stand up for common sense and freedom.  Attach a school or domestic violence to any vice or allegation of misconduct, and you end up with a capital crime.  But I think there is also a place for mercy.

The police do not have to charge, and the prosecutor does not have to prosecute.  They have that discretion notwithstanding the legislature.  Not every crime has to be punished – nor should it be.  Many people would disagree with that.  But let those persons throw the first stones who have not themselves committed a crime without being caught or without punishment.  In the end it is up to people like me to be the voice of reason to a jury.  We are the last and best hope and saving the lives of good people like this young man.  It is a heavy burden.  You will see things differently when it is your son or daughter, who is a good person, but who has made some sort of mistake and ends up on the receiving end of the criminal justice system.  It’s not hard to do.  There are so many criminal laws that I do not know them all.  Do you think this kid thought that he may have been committing a felony when he took the gun out of his truck?  Of course not, yet we are ruining his life as a result.  There is a place for mercy and compassion in the court system.  But no legislator, prosecutor, sheriff, or judge gets elected by promising mercy and compassion.

Tyrannical prosecutors protecting tyrannical cops

When you cross a police officer, in many West Virginia counties, you also cross one or more “badge bunny” prosecutors.  I have found that the difference between a good prosector and a bad one is their backbone and their integrity.  Confident, knowledgeable, experienced and honest prosecutors are independent.  They do what is right.  They know what is right – and what is wrong.  Others lack confidence, as well as the backbone to be independent from law enforcement.

As you venture between various counties in West Virginia, you will encounter prosecutors of both types.  I have encountered the badge bunny prosecutor derangement syndrome in one particular West Virginia county several times now.  In these badge bunny jurisdictions, even the magistrates are not immune from infection.  In fact, some are former police officers themselves.  Unfortunately, almost none are former lawyers.  Hell, who needs legal training when deciding bothersome legal issues, such as one’s freedom?  Magistrates are almost always infected where there is an outbreak among prosecutors.  If a prosecutor or a cop says the sky is purple, then the sky is purple.  Defendants and defense attorneys are scum – even if they are not scum.  They are worthless bastards.

If you want to experience injustice, piss off a cop in one of these counties.  For instance, you could have an affair with his wife.  He may be of the sort to arrest you illegally and beat you down when no one is looking, and while you are handcuffed.  A badge bunny prosecutor would proceed to prosecute you.  You could show him evidence that you were illegally arrested, and that you were illegally beaten.  The evidence could be indisputable.  But your barking up the wrong tree.  Unlike the good prosecutors, justice is not his concern, getting convictions is.  Protecting “his” or “her” law enforcement officers is priority numero uno.

So you then could file some civil lawsuits.  Then you have really made it personal to the prosecutor.  Justice gets thrown to the wayside altogether, and you now  have crosshairs on your back.  Your only way out is through a trial.

Now compare this to the often-seen scenario when a police officer violates the law.  He gets a sweetheart deal and fades from the spotlight conviction-free.  If it doesn’t piss you off now that this injustice and tyranny exists in West Virginia, then just wait until it happens to you.  Good people get wrongfully arrested in West Virginia.  Then you will need a lawyer who has the guts to stand up to these scoundrels and fight them on their home field.  Choose carefully.

WVSP feeling the heat, and deservedly so.

The latest of Charleston Gazette reporter Gary Harki’s article critical of the WVSP is, to me anyways, an absolute bombshell – though not surprising in the least.  Usually in the media you find brown-nosed reporting with regards to law enforcement, usually which talks about all the criminals who were arrested and/or charged.  Harki has had the gusto to take on the West Virginia State Police in a big way.

The article deals with former-Trooper-now-Hinton-Police-Chief-Snavely, who I have discussed before.  I wasn’t surprised when I found out that prosecutors were not charging Snavely with a crime.  But I was surprised to see Harki’s article titled, “prosecutor not told ex-trooper falsified log“.  Apparently the WVSP “investigation” into Snavely uncovered the fact that Snavely falsified his duty log for the evening when he was accused of his wrongdoing.  However, they apparently chose to leave that tidbit out of the investigation report which went to the prosecutor.  So Harki finds out about this from attorney Mike Clifford.  Harki then goes to the prosecutor who made the call.  And he is apparently pissed, and rightfully so – since it was published as being his decision not to prosecute Snavely.  And of course, as usual, the WVSP is angry at the attorney – at Clifford!  It was his fault – he shouldn’t have told Harki.

We have a culture of secrecy in the WVSP.  Even though for the most part they are good and law abiding officers, the top brass have have made some decisions which undermine the public’s trust and confidence in their integrity.  If you have a public official who has done something wrong, the public needs to know about it, and the public wants to know about it.  If covered up, the public gets pissed.  And the coverup is always worse than the crime.  If they would just throw the bad officers under the bus where they belong, from the very beginning, the WVSP would come out smelling like a rose.  It would reinforce our confidence in law enforcement.

Instead we have the awful situation where an innocent citizen can have his civil rights violated by some cowboy cop, and there’s nothing the person can do about it.  What can they do?  Call the police?  Yeah right.  Call the West Virginia State Police?  Yeah right.  Call the Governor?  You just get a form letter in return.  Call your congressman?  You just get a form letter.  Call the FBI?  Do you have any idea how many complaints they probably get?  Without something more to lend legitimacy to your complaint, there is about a 99% chance they will do nothing about it.  The only thing you can do is get a civil lawyer on your side.  Someone who has the guts to sue the WVSP, and to put up with the WVSP verbally accosting them in every newspaper article rather than commenting on their troopers’ misconduct.

“Nasty Little Surprises” and “discovery”

Back in July of 2008, I posted about one of Mark Bennett’s posts on “NSL’s” – nasty little surprises.  A NSL is essentially exculpatory evidence which either the prosecution/State has not provided, or which they are completely unaware of.  The point was, since the deck is stacked against you to begin with, why disclose NSL’s which you discover in the course of investigating and preparing for your criminal jury trial?  After all, the chances of us winning to begin with are slim, and much of that is due to the way the system is set up.  If we let the prosecutor on to our theory of the case before our opening argument, he or she will inevitably do everything possible to shoot it down – either by offering deals to slum rats to testify to something different than what they have previously said, or by prepping the investigating officer to pontificating on the subject in such a way as to steal our thunder.  Of course, in a perfect world you should share exculpatory evidence with the prosecution/State so they could dismiss the case.  But that’s not usually how prosecutors work unfortunately.  They want a conviction, they want to win.  Many would rather diffuse your NSL and move ahead with prosecution.

The only problem is that in West Virginia, the defense is obligated to provide “discovery” to the State/prosecutor.

First of all, someone please tell me how that doesn’t violate the 5th Amendment of the US Constitution?  As defense attorney, I represent the defendant obviously.  In the United States, defendants in criminal trials have no obligation to ask even a single question, call even a single witness, or introduce even a single item of evidence.  They have the 5th Amendment right to remain silent.  But the state rules say that if I do call a witness or present evidence, I have to provide disclosure of such before the trial – sometimes by a particular date.

As if the system didn’t make it easy enough for prosecutors already….  If you hear prosecutors talk about trying cases, they make it sound as if they have such a difficult task.  They have to come up with such an enormous amount of evidence, and they have to prove so much….  In reality, being a prosecutor is a piece of cake.  You are set up to win.  In fact, to actually lose a case due to an acquittal in West Virginia, all 12 jurors have to unanimously vote “not guilty.”  With that low of a bar, it’s pretty hard not to win.  And yet, the State has mandated that we cannot ambush prosecutors with some types of NSL’s.

The practice of prosecution is basically preparing for, and conducting, direct examinations.  They’re their witnesses, they’re mostly cops or victims, or people with plea deals that come with a noose around their neck, held by the prosecutor, which require them to do the prosecutor’s bidding, or else.  And they prepare the witnesses and ask open ended questions and check off on their legal pad everything the person is supposed to say.  That’s pretty much it.  As defense attorneys, we engage in guerilla warfare with all of these witnesses.  We almost exclusively cross examine witnesses.  We have to learn, develop and master the art of cross examination.  It is much, much more difficult.  And more unpredictable.

When we call a NSL witness, we reverse the roles and put the prosecutor on defense – something they are not used to.

The “discovery” rules do not mandate that we provide all of our NSL’s to prosecutors.  We have to disclose the names and addresses of any witnesses, though generally not the substance of their testimony (as in civil cases).  Of course the prosecutor is free to have someone contact or interview the person to see what they are going to say.  Unfortunately, sometimes that consists of running criminal background checks on the person, and otherwise investigating the person as if they were a suspect in a crime.  We also have to provide copies or access to any exhibits or tangible evidence we intend on presenting.

The loophole here is in the substance of the witness testimony.  The prosecutor doesn’t necessarily have any idea what I will ask the witness on the witness stand.  He can interview the person before hand, but he may not be able to put 2 and 2 together before I do so for him/her in front of the jury.

I recently revealed some NSL’s to a prosecutor/court/jury during the course of a criminal jury trial.  The prosecutor was upset because I only revealed the identities of the witnesses the day before the trial, and he strenuously asked the judge to “suppress” my witnesses due to failure to comply with discovery rules by disclosing the witnesses well in advance of trial.

There are several problems with this:

(1) I only found these particular witnesses at the last minute, and therefore I could not have disclosed them earlier; (2) The witnesses had exculpatory evidence and law enforcement knew about them in advance, yet failed to disclose them to the defense; (3) If these witnesses had exculpatory evidence, shouldn’t the prosecutor, who’s job it is to see that “justice” is done, also be interested in that information – in finding the truth – and is it ever proper for the prosecution/State to suppress exculpatory evidence from a jury – a jury who is in the process of deciding the fate of a young man who otherwise would have a long, hopefully happy, life to live?

Of course the practical reality also is that, if the court did exclude/suppress these witnesses, it would be per se ineffective assistance of counsel and a mistrial would have to be declared.  So in reality, even if the court sympathizes with the prosecutor, the greater interest is in judicial economy, and no judge wants to declare a mistrial if it can be avoided.  Moreover, no judge wants to invite a reversal if no mistrial is declared and exculpatory evidence is suppressed due to failure of counsel to disclose or provide “discovery.”

When you really think about these things, you come to the realization that this is a scary world we live in.  There are so many damn laws, just about everything is illegal.  And prosecutors can be like dictatorial tyrants.  If they, or law enforcement, want you convicted of something, they will do it.  Only a defender of people – a defender of the constitution – may be able to save you.  And if you have to depend on the public defender or court appointed defense counsel to do this, they may not have the time/motivation/resources to conduct their own investigation and find exculpatory evidence.  The best protection from wrongful conviction is money.  Even if you have to borrow it, do so.  Hire a criminal defense attorney, the best you can afford.  Hire a private investigator.  Fight for your life.

- John H. Bryan, West Virginia Attorney

Cops and Prosecutors in Southern West Virginia – Part Deux

Since my last post on this topic, much has happened in Pocahontas County, West Virginia.  Yet another deputy of that county, was charged with a felony – actually five (5) felonies.  When I first heard this, I knew it was just a matter of time before the charges were dismissed, since law enforcement officers are apparently above the law in that county – as we all learned when this deputy’s buddy was previously given a sweetheart plea deal in his felony criminal case which I detailed earlier.

Indeed, the Pocahontas Times reported that the charges have now been dismissed.   Apparently the prosecuting attorney (and her assistant) were recused from remaining on the case (which is a convenient thread that runs through just about every case where law enforcement officers are charged criminally).  Actually, they requested to be recused. As I have pointed out previously, why and the heck is there a conflict for a prosecutor when a cop breaks the law?  In my opinion, this is step No. 1 for the cop-gets-off process. So, this prosecutor and her underling were recused.  So the defense makes a motion to dismiss.  Then there is a hearing with no prosecutor.  So a motion to dismiss is heard with just the cop and his defense attorney in the room.  Obviously the result was that the charges were dismissed.  Apparently step No. 2 in the cop-gets-off process is to have no prosecutor show up at the trial.

According to Allegheny Mountain Radio, no prosecutor was at the hearing or assigned to the case due to “miscommunication.”  Show me a case where Joe Blow got his five felonies dismissed due to “miscommunication” between prosecutors.  It would never happen.  But, conveniently, we have a cop in a rural county, where that exact thing just happens to take place.  The stars and the planets align, hell freezes over, and the man walks free and clear.  

The prosecutor seemed surprised and disappointed this happened.  She is quoted at one point in the article:

Prosecuting Attorney Donna Price said Tuesday afternoon that because of that, Smith ordered the assistant prosecuting attorney out of the courtroom before he could explain the state’s position.

Nothing really surprises me about what happens in this particular county.  But this sentence did catch my eye.  It reads that “Prosecuting Attorney Donna Price said Tuesday afternoon that….”  

I was in the Pocahontas County courthouse on Tuesday afternoon.  I desperately needed to speak with the Prosecuting Attorney on behalf of a client.  I had attempted to call her probably twenty times.  I left message after message after message over the course of months.  I never received a return call, and the receptionist at her office would consistently, and rudely, brush me off every time I urged her to have the prosecutor return my call (as if a taxpayer-funded public office employee had the right to be rude to lawyers, or anyone else, calling that office…).  Mind you, I have dealt with many a prosecutor, in many different counties, and never have I had this problem before.  But, in this instance, my client had not only a pending criminal case, but a pending civil case against the county and her office.  I thought maybe that had something to do with it.  

She had two arrest warrants out against the person, and I was there to turn him in and get a bond set – in part because we were there for a marathon session of depositions which would last two days.  The only time I was able to speak with her previously was when I dropped into her office unannounced.  At that time, she agreed that she would agree to a reasonable bond.  Well, when I actually showed up that morning, which was expected, and which was Tuesday July 7, 2009 – the “Tuesday” referred to in the article – her office door was closed.  Her assistant prosecutor was there, and said that she was not in the office that day, that she was out all day because of a death in her family.  

So was she in the office/courthouse on Tuesday July 7, 2009 and avoiding me, or was she out?  Maybe she was out part of the day, or maybe she spoke to the reporter over the phone….  I don’t know for sure, but I really didn’t appreciate being barred access to the prosecutor when this reporter had full access. 

But there was more.

After telling me of his boss’ absence, the assistant prosecutor then said that he had spoken to her about my client, and that she wanted a “six figure bond.”  This was for two misdemeanors mind you.  It seemed obvious to me that this was retaliation for the civil case having been filed.  A six-figure bond for two misdemeanors?  Not only was this a true injustice, but it was an ambush.  Both myself and my client were ambushed by this request for a “six figure bond” when I was previously assured that bond would not be a problem.  Most other prosecutors would have given me a heads-up beforehand.  The goal seemed obviously to put my client in jail as retaliation.  Luckily, I was able to negotiate a slightly lower bond and my client was able to bond out.

But as the Cat in the Hat says, “that was not all, no that was not all.”

I had previously demanded two videos from the prosecutor.  They were demanded by a prior attorney several times, and they were demanded by myself several times, including through a FOIA request, a motion to dismiss due to failure to produce evidence, and a civil lawsuit.  The two videos, showing two arrests of my client, for which he was charged, were never turned over to me or my client.  In fact, the prosecutor wouldn’t even acknowledge the existence of one of the videos, even up until the day of the depositions in the civil case (the Tuesday I was talking about).

Well guess who did have both of the videos….  

That’s right.  The civil defense attorney for the county, and the civil defense attorney for the State Police both had the videos.  So here we have a criminal defendant charged almost two and a half years ago with committing crimes.  Jury trials are scheduled with no videos being produced.  The defendant fails to appear because the videos were not produced and he is afraid of getting railroaded.  He is charged for failure to appear (twice).  They still don’t produce the videos.  They get a FOIA request.  They finally admit to one of the videos, but still don’t produce.  A motion to dismiss due to failure to produce evidence is filed.  They still don’t produce.  A civil lawsuit is filed.  They still don’t produce.  Another seven months pass while the civil case is being litigated.  The prosecutor still doesn’t produce the videos to the defendant, who still has pending criminal charges.

Mind you, the prosecutor never even admitted to the existence of one of the videos to myself or my client, yet the civil defense attorneys were provided digital copies of both videos.  We saw them for the first time during a videotaped deposition.  You guessed it, compliments of the prosecutor, it was another ambush.

When I went back down to the prosecutor’s office, her door was still closed (this was the next morning however), and still apparently  ”out of the office.”  I confronted her assistant prosecutor who was standing in the reception area.  I told him that I didn’t appreciate the suppression of this evidence from me while the same was provided to civil defense attorneys, unbeknownst to me.  I told him I would get to the bottom of the matter, and that if I found out that anything unethical was committed, I would report the same to the state bar.  Well that did it.  He started yelling at me, accusing me of threatening him, and, suddenly, the boss prosecutor was back “in the office,” and opened the door to her office and walked out and began yelling at me as well, telling me that she didn’t have to do a damn thing basically.  Following her lead, PCSD deputy Brad Totten then got in my face and joined in, shouting at me.  All of them were shouting, in part, that they thought that I had received the videos, and that their previous secretary must have mistakenly failed to send me the videos.  

Give me a break.  If that is true, then give me her name and I’ll take her deposition.  Show me the cover letter that should have accompanied the videos.  Show me proof of postage.  Show me any proof.  

Res ipsa loquitur – the thing speaks for itself.

For the record, I would like to know whether Prosecutor Price was “out of the office” at approximately 9:30 a.m. on Tuesday July 7, 2009 – the same day and time that according to Alleghany Mountain Radio, she sent Assistant Prosecuting Attorney J.L. Clifton downstairs to inform her about what was going on in the aforesaid deputy’s prosecutor-less hearing in magistrate court, and also the same day that she was available to the Pocahontas Times reporter who interviewed her regarding the matter.  And was there ever any attempt at sending me the videos?  Maybe a special prosecutor should be appointed to investigate that.  

Additionally, maybe someone should investigate a prosecutor’s office who uses the threat of continued criminal prosecution as leverage in civil litigation, which happened in this case.  It wouldn’t be the first time Pocahontas County has had a prosecutor investigated.

There’s no real conclusion to the story, just the fact that I’m now all ‘riled up and even more willing to speak out against injustice occurring daily in places like Pocahontas County, West Virginia.  On a lighter note, I was really impressed with Magistrate Kathy Beverage of that county.  I wish more magistrates had her inherent sense of justice and courage. 

Hopefully I’ll get to Part III sometime soon.

 - John H. Bryan, West Virginia Attorney.

WV Supreme Court Acquits Woman Convicted of Murder

In a 4-1 decision, authored by Justice Menis Ketchum – a Justice with criminal defense experience – which was filed yesterday, the West Virginia Supreme Court of Appeals actually acquitted a woman who had been convicted of murder in Cabell County, West Virginia.

A jury convicted Tanya D. Harden of first-degree murder in 2007, ignoring her argument that she acted in self-defense. She said Danuel Harden Jr., her husband of 11 years, told her that “nobody was going to walk out of the house that night,” including their two children.  She apparently shot her husband with a shotgun while he was sleeping on the couch.  

This was basically a “battered woman syndrome” self-defense case. 

The justices’ decision acquitted Harden of murder charges, and ordered her released from prison immediately. She had been serving a life sentence with a recommendation of mercy.

Syllabus Point 3 of the Opinion held that: 

Where a defendant has asserted a plea of self-defense, evidence showing 

that the decedent had previously abused or threatened the life of the defendant is relevant 

evidence of the defendant’s state of mind at the time deadly force was used.  In determining 

whether the circumstances formed a reasonable basis for the defendant to believe that he or 

she was at imminent risk of serious bodily injury or death at the hands of the decedent, the 

inquiry is two-fold. First, the defendant’s belief must be subjectively reasonable, which is 

to say that the defendant actually believed, based upon all the circumstances perceived by 

him or her at the time deadly force was used, that such force was necessary to prevent death 

or serious bodily injury. Second, the defendant’s belief must be objectively reasonable when 

considering all of the circumstances surrounding the defendant’s use of deadly force, which 

is to say that another person, similarly situated, could have reasonably formed the same 

belief. Our holding in Syllabus Point 6 of State v. McMillion, 104 W.Va. 1, 138 S.E. 732 

(1927), is expressly overruled. 

In Syllabus Point 4 of the Opinion, the Court held that:

Where it is determined that the defendant’s actions were not reasonably 

made in self-defense, evidence that the decedent had abused or threatened the life of the 

defendant is nonetheless relevant and may negate or tend to negate a necessary element of 

the offense(s) charged, such as malice or intent. 

In Syllabus Point 5 of the Opinion, the Court held that:    

An occupant who is, without provocation, attacked in his or her home, 

dwelling or place of temporary abode, by a co-occupant who also has a lawful right to be 

upon the premises, may invoke the law of self-defense and in such circumstances use deadly 

force, without retreating, where the occupant reasonably believes, and does believe, that he 

or she is at imminent risk of death or serious bodily injury.  In determining whether the 

circumstances formed a reasonable basis for the occupant to believe that he or she was at 

imminent risk of death or serious bodily injury at the hands of the co-occupant, the inquiry 

is two-fold. First, the occupant’s belief must be subjectively reasonable, which is to say that 

the occupant actually believed, based upon all the circumstances perceived by him or her at 

the time deadly force was used, that such force was necessary to prevent death or serious 

bodily injury. Second, the occupant’s belief must be objectively reasonable when 

considering all of the circumstances surrounding the occupant’s use of deadly force, which 

is to say that another person, similarly situated, could have reasonably formed the same  

belief.  Our decision in Syllabus Point 2, State v. Crawford, 66 W.Va. 114, 66 S.E. 110 

(1909), is expressly overruled. 

You know, sometimes prosecutors should come to the conclusion that the guy deserved it.  They should have given this woman a break.  She was protecting her children.  The police wouldn’t have stopped him from killing her, or the children.  That’s why we have guns for self defense.  It’s each of ours individuals responsibility to protect ourselves and our children.  The prosecutors were trying to victimize these children by turning them into orphans.  

As the Appellant/Defendant’s brief noted (caution: there are some gruesome photographs):

From Tanya Harden’s arrest to her sentencing, the State has never disputed an essential fact – that the decedent threatened to kill his wife and children and used his fists and shotgun to brutally beat his wife just before he died.  The injuries suffered by Tanya Harden, including facial fractures, were preserved on photographs taken the day of her arrest and made part of the record in this case, and were attested to by the State’s own witnesses.

This is our job as defense attorneys: to protect those of the Lord’s children who have fallen short of perfection from the wrath of those who believe they have attained it.  And by those, I am talking about prosecutors.  And Ms. Harding may have fallen short of perfection, but I can’t say that I wouldn’t have done the same thing given the circumstances.

 

- John H. Bryan, West Virginia Attorney

Finally the rest of the country finds out that prosecutors have too much power

Not that I care what happens to former Senator Stevens in Alaska….  In fact I despise career politicians on both sides and believe that there should be term limits for all congressmen.  But when a federal judge tossed a conviction and opened his own special prosecution of the prosecutors who “secured” Stevens’ conviction, I think it was a great moment for our country.  I wish there could be more.  Because the same conduct happens every day across the country at the state level with hardly a sigh from the presiding trial judges, much less an overturned conviction and a reverse prosecution.

The fact is that we give prosecutors way too much power.  We have so many damned laws in West Virginia – and in every other state – that almost everything you do everyday is illegal.  Everything.  Want to take your grandson rabbit hunting?  In all likelihood you will violate a dozen laws governing the transport of firearms and hunting regulation red-tape before you return home.  

And if it’s not illegal, then all it takes to be prosecuted is for some lying cop to say that you did something illegal.  In West Virginia, every allegedly illegal act carries a potential sentence of up to 1 year for most misdemeanors, and years and years for the felonies.  Then, the prosecutors can charge you with a dozen counts for every allegedly illegal act, putting you in the position of spending the rest of your life in prison.  They have the power to take away your freedom and your property.  This power is unchecked.  It’s not usually a problem when you have an honest and sensical prosecutor.  But what happens when you have a devious or evil person as the prosecutor?  You have a real problem – one which has occurred and has been documented across the country time after time.

Our only defense?  Criminal defense attorneys and judges.  And good luck getting a judge to toss a conviction for a non-former U.S. Senator.

 - John H. Bryan, West Virginia Attorney.

Do prosecutors really believe law enforcement are angelic?

I frequently end up getting retained to represent criminal defendants in cases involving law enforcement officers as “victims” – usually in counties other than the one in which I reside.  Without fail, the prosecutor assigned to the case will be gung-ho moving forward with the prosecution, even if the evidence is slim to non-existent  (most usually consisting solely of the verbal testimony of the officer).  Mind you, I have encountered a prosecutor who had the gumption to call a spade a spade and dismiss the case – but that was an exception to the rule.

The other day I was speaking with an assistant prosecutor whom I had never met before, regarding a similar case.  The facts were extremely disputed, not just by the defendant and the “victim,” but by the eyewitnesses.  Basically there was a fistfight involving a civilian and an off-duty officer.  When other officers responded, do you think they approached the situation fairly?  Of course not, they arrested the civilian without taking any eyewitness statements – based solely on the statement of the off-duty officer – and of course added in a “contempt of cop” charge (obstruction) as the cherry-on-top, for allegedly not withdrawing from the fight quickly enough.  Since they were not present when the fight began, they have no idea who was the aggressor, and who was engaging in self defense.

When I tried to explain this disparity to the prosecutor, suggesting that the charges be dismissed, he looked at me like I was crazy, replying something to the effect of “our officers are perfect creatures molded in the image of Christ.”  

Do law enforcement officers transcend humanity when they get sworn in?  Are they somehow immune from human flaws?  Has no law enforcement officer on the face of the earth, throughout recorded history, ever told a lie?  Ever protected one of their own? Ever trumped up charges against someone they didn’t like?  Was the term “blue wall” created by some UFO researcher digging through the National Archives?  Of course not.  There are thousands of provable, documented incidences, and the fact that a prosecutor can’t have an open mind about such things is just plain scary.

I suppose this is why our founding fathers guaranteed us the right to be tried by a jury – unless of course your in West Virginia and are charged with a misdemeanor and you fail to request one within twenty days….

 - John H. Bryan, West Virginia Attorney.

Update on Greenbrier County “Cattlegate” Cons

The Register-Herald published a rather lengthy and informative article about Greenbrier County’s “Cattlegate” scandal this morning. I have posted on this matter several times thus far, here, here, here, here and here, and I have noticed a lot of interest in this case from the sheer amount of search engine traffic directed to my site from searches about these individuals. I suppose that some people were relying on me to post an update to this matter since the sentencing was supposed to already have happened. But I really didn’t have any idea what was going on. But, I knew that Register-Herald reporter Christain Giggenbach was on top of it, so I need only wait until he published an article, which I knew he surely would – and this morning he did.

Apparently the sentencing was supposed to have taken place this morning, but it was continued, though there were no motions filed by either the prosecution or the defense. Well why was it continued? Apparently these angelic creatures have turned stool pigeons and are collaborating with authorities in investigating other individuals. But since all these canaries are proven liars, I’m not sure what their help is worth, and investigators better not give their words more than a micro-ounce of a grain of salt. The history books are full of tragedies which have occurred through the utilization of this type of snake-in-the-grass testimony. For example, see this post from Glen Graham at the Oklahoma Criminal Defense Blog.

The sentencings were continued to October 17 at 10:30 a.m. before U.S. District Court Judge Thomas E. Johnston in Beckley’s Federal Courthouse.

So what kind of sentences are they looking at? A lot of people have commented to me that this bunch is going to get away with probation, but that will not happen. They may however, get some type of home confinement, or mixed sentence. With respect to O’Brien, a presentencing memorandum filed by Assistant U.S. Attorney L. Anna Forbes recommended a prison sentence up to 10 years, but “indicated the defendant has provided more information about possible criminal conduct of others who may have filed claims in his multi-million dollar bankruptcy case.” Lastly, she writes to the Court that “a sentence within the advisory guildine range of 97 to 121 months of imprisonment is appropriate.” So fear not, even with his sleazy finger-pointing, he will be doing time.

With respect to Henthorn and *****, the AUSA recommended 6 to 12 months, while their lawyers are arguing for home confinement or a mixed-type of sentence – and they are apparently strenuously snitching as much as the feds will allow, in order to get what they want. Mind you, that all of these defendants already snitched on each other – one even reportedly wearing a wire in a conversation with the others.

I know that there are a lot of people out there, in Greenbrier County, Monroe County – and across the fruited plain – who want the Judge to stick it to them. The AUSA noted in her memorandum that:

“One of the victims is a single-mom with a couple children in college, another is a Virginia cattle farmer with a small farm who lost so much money and was so ashamed by his financial predicament that he could not, for a long time, bring himself to tell his wife about what the defendant had done,” Forbes wrote. “Many of the victims attempted to pursue claims in bankruptcy, a process that left some with unsatisfactory settlements, large legal fees and a sense, because of the perceived misconduct by other creditors, that they had not been treated fairly by the bankruptcy system.”

So this is a great group of guys. Real quality people, and I wish them luck on the 17th.

- John H. Bryan, West Virginia Attorney.

Breaking News: candidates for Kanawha County Prosecuting Attorney Want to Reduce Dismissals

This breaking news was reported in the Charleston Daily Mail today. Reportedly, both candidates for Kanawha County Prosecuting Attorney want to reduce the number of dismissals in their county due to West Virginia’s one-year-out-from-indictment-and-the-case-is-dismissed rule. As they say, shoot for the stars….

Geez, I’ve got to start taking more cases in Kanawha County.

There are lots of excuses for this, such as too many cases and too little funding. However, as Rudyard Kipling said, “there are forty million reasons for failure, but not a single excuse.” Having worked as a prosecutor in an office that had a caseload that was many times larger than Kanawha County’s, I can’t remember one case ever getting dismissed based solely on neglect. Heck, we sometimes went through a thousand cases a day. I guess that if you wanted to set up a system that couldn’t manage the caseload, you could do it. And apparently Kanawha County has done it. The tough part is making it work. But that should be the status quo, not some great achievement.

– John H. Bryan, West Virginia Attorney

Officer Fired for Stealing Breakfast

WNBC New York reported yesterday that a Morristown, New Jersey, police officer lost his badge for shoplifting eight breakfast sandwiches from a convenience store. The prosecutor was reported as saying that the plea he entered “represents the fact that no one is above the law.”

So police officers are human… They are sinners like the rest of us. Does this mean that all police officers shoplift? No. But it does mean that they have the same problems, faults, regrets, and wrongdoings as the rest of the general public. And when they are caught in something like this, generally they are prosecuted like the rest of us.

However, where the big difference lies is when laws are broken related to their work as a law enforcement officer. What about the situation where a police officer tells a little white lie on the witness stand in order to validate the search or seizure of some guy who possessed drugs? That is a crime. In fact it is a serious crime – perjury. What about the situation where a person runs their mouth to a police officer and the officer arrests that person just out of spite – but for the charges off “obstruction” of the duties of a police officer? Did that officer not commit a kidnapping? A false imprisonment? An illegal arrest? The fact is, that these crimes are committed by law enforcement officers everyday around the country, and nothing is done about it because the persons charged with enforcing the laws – the cops and the prosecutors – are one in the same, and are not going to investigate or prosecute themselves or their buddies unless they have no choice. And as they see it, what is the harm when you know the person is guilty in the first place? And they are serving the public, right? Why punish some poor cop who is just trying to serve and protect? What motive would they have to ever lie or commit any crime?

The fact is, that society – and the judicial system – likes to pretend that cops are perfect, that they are perfect beings, formed in the likeness of Jesus Christ. That they would never, ever, lie under oath, that they would never, ever, use their badge and gun for their own personal gain or to hurt another who has gotten under their skin. But we, as people with common sense, and as people who observe things with our own eyes know better. We know they make mistakes and commit crimes, and do things they are later ashamed of – just like every other human on the planet.

So who are they kidding? Jurors – if they can get away with it.

– John H. Bryan, West Virginia Attorney

Debate Continues About Searching Lawyer’s Offices

A few days ago, I posted about an extremely troubling trend emerging whereby lawyer’s offices are being searched as part of a criminal investigation of their clients. Since then, Scott Greenfield at Simple Justice picked up the conversation with this post. He first noted mine and Bobby Frederick’s concerns, stating that:

My ilk will go on auto-pilot and pound the keyboard exclaiming how these searches, where the government comes in, seizes everything in sight and sorts it all out later when they can examine every file at its leisure. This blunderbuss approach has been condemned by South Caccalacca criminal defense lawyer Bobby Frederick and West Virginia criminal defense lawyer John Bryan, and their concerns are well-founded.

But he also argued that “when a lawyer gets too close to his clients, such that he becomes a party to their enterprise,” there is a legitimate reason to search for evidence. And in these situations, Greenfield argues that a mutually agreed upon “Special Master” should be appointed to conduct the first level of scrutiny. It seems to me that this is not a bad idea.

But it will never happen – not as long as you have prosecutors who are willing to go between judges to get their warrant, and not as long as you have gullible or malicious judges who grant the warrant without conferring with the first judge. And let’s not forget this is only legitimate in the scenarios Greenfield points out: where the lawyer has helped the client engage in wrongdoing. This absolutely should not apply in a Texas murder case where the prosecutor is merely fishing for evidence with no evidence of wrongdoing by the attorney.

Bobby Frederick, of the South Carolina Criminal Defense Blog, also noted that now “a federal judge in New Jersey is allowing prosecutors to review computer records seized from a criminal defense lawyer’s office, including the files of clients who were not targets of the search.”

Frederick also cited my game-leveling dream scenario where defense attorneys could do the same thing, and concluded that:

This practice, in any situation other than where there is probable cause that a defense attorney is himself engaging in criminal activity and the search is specific and focused so as not to violate attorney-client privilege, is an abuse of process.

And I think that is something we all agree on.

– John H. Bryan, West Virginia Attorney

Search Warrants for Attorneys’ Offices is Troubling Trend

Recently there have been a number of cases of search warrants being executed on Attorneys’ offices for the purpose of gathering evidence against a client/target of investigation. One such case was detailed by Bobby Frederick at the SC Criminal Law Blog here on August 23, where attorney George Argie’s office was raided by the feds seeking information/evidence on one of his clients. Frederick correctly notes that the appropriate method of obtaining information from an attorney’s files is through subpoena, in which case the attorney gets a chance to raise the attorney-client privilege before a judge.

On July 31, Frederick posted about the search warrant that was issued in Frisco Texas on attorney Keith Gore’s office, where State officials were seeking items and letters written from his client to his client’s wife. Thankfully, criminal defense lawyers in Texas came out in numbers in opposition to this Gestapo-like tactic.

Frederick recently added an update to that case, citing Grits and Tex Parte Blog, noting that the judge who signed that search warrant has now been recused from hearing the capitol murder case.

It is sickening to see that there are prosecutors out there who would go between different judges to get an illegal search warrant of an attorney’s office. If that is legal, then I would like to see a mechanism put in place whereby the lawyers of criminal defendants can obtain their own search warrants to be executed on prosecutor’s office. Say, for instance, that you know a certain prosecutor has a video tape that would exculpate your client. He refuses to hand it over, or to even acknowledge it. You could get a search warrant and have your private investigator execute the warrant and look for the tape. Yeah right. That’ll be the day. The sad fact is, that prosecutors are perfectly willing and able to abuse their power and not only will many judges not stop them, some of them apparently will help. I’m just glad I don’t practice in Collin County Texas.

– John H. Bryan, West Virginia Attorney.

“Testilying” an everyday occurrence

Mark Bennett posted a few days ago about the “everyday incident” of cops committing perjury – or as they call it, “testilying.” He stated that:

Not all cops who lie are willing to perjure themselves. Many times cops on the witness stand tell different stories (the truth) than what they had put in their offense reports (lies). Unfortunately, though, most cases never make it to trial (often the lies are too small to be relied upon to affect the outcome), so prosecutors — despite having seen this happen more than I have — rely on offense reports as the literal truth in deciding how to resolve cases. (The lesson to defense lawyers is, of course, not to make that mistake, to listen to your client, and to remember that good things happen when you try cases. Nobody ever got acquitted by pleading guilty.)

I can’t tell you how many times I have cross-examined a cop in a suppression hearing or preliminary hearing, where something completely different comes out of his mouth than what he wrote in his police report. I think that what obviously happens is that the cops do whatever they want initially. They pull the person over on a “hunch,” or search the person or their premises illegally, without regards to mere rules or laws, then they put in their “report” a little white lie – that they received a tip from an undercover informant, or that the person drove erratically, or that the person consented to being searched. This, in their mind, validates the search, stop, or seizure if they found anything incriminating. Then, several months later, they get called to the witness stand, and they fail to review the report, but their memory is not totally in sync with their report.

Cops don’t fear prosecution for perjury because there is almost a 0% chance they will be prosecuted. The cops – or judges for that matter – could care less. The only, only, only situation in which there could be criminal liability imposed on a cop for perjury is if they are caught on tape or under oath, and if it is blatantly intentional. Only if the situation is such that a prosecutor of judge would fear for his or her own job if they fail to act. Otherwise, they will always be given the benefit of the doubt, if not just a shrug of the shoulders.

As a defense attorney, you know they are lying, but there is not much you can do about it other than to contest it and to create a record for your trial or your appeal. As Mark Bennett, said, “nobody ever got acquitted by pleading guilty.”

– John H. Bryan, West Virginia Attorney.

Is it a crime for a child to take a photo of a cop handcuffing her father?

Houston Criminal Defense Lawyer, Mark Bennett, posted yesterday regarding this story from Johnson County Tennessee, where Sheriff’s Deputies have been arresting people and confiscating iphones after pictures are taken of the cops in public.

This reminds me of a West Virginia case I am dealing with right now where a man videotaped the police shooting tear-gas grenades into his home. The police then broke down the door, shot the man with a taser, and attacked the man with their k-9. Then the guy was dragged off and thrown in jail. Guess what the charge was? Murder? Kidnapping? No, he was alleged to have made a harassing phone call. Guess what happened to the video and the video camera? The cops seized it with the consent of the prosecuting attorney – and it has yet to appear or to be provided to the defense. The problem is, that the 911 logs prove that the officers found it, and called the prosecutor requesting permission to seize it. Do you think they could be holding out until after the statute of limitations runs on a civil lawsuit? Or do you think they “misplaced” it somewhere in the evidence room?

So for those of you who think that law enforcement corruption in West Virginia is a conspiracy theory, please see the above paragraph. It exists. If any State or Federal investigators are at all interested in this case, please feel free to contact me and I will provide you with all of the particulars. But I won’t hold my breath with respect to the State, since they would be the ones getting sued. And I suspect the feds are too busy to worry about West Virginia. Like they say, “if you investigate one case, everyone else will want their case investigated as well…,” and that could take a while.

– John H. Bryan, West Virginia Attorney

This Blog Makes Front-Page News…

Note: this post was initially much more extensive.  Pursuant to the advice of my beautiful wife, against whom I have never won an argument (and suspect I never will), and who’s advice has the usual effect of making my hot-heated initial reactions seem childish and ineffective, I have revised this post.

It seems that my humble commentary regarding the Register-Herald op-ed piece detailed in my last post touched quite a few nerves at the Monroe Watchman newspaper. For those of you who may not know, the Monroe Watchman is the main newspaper for Monroe County, West Virginia, and it has been continually published since 1872. It’s a great paper. I read it every week, and I am also a paying advertiser. They are also located right across the street from my office building.

Why should they care about my commentary in this post? Because the Watchman is owned by the family of the former prosecutor who I allegedly criticized, and understandably, they are protective of their family members. And also understandably, the former prosecutor is deeply hurt as a result of the lost election.  And I completely understand the hurt, as I suffered through my father’s election defeat as a college student.  It’s not easy to see negative television commercials about your father running during prime-time every couple of minutes for a month straight.  Your natural reaction is to lash-out at your perceived threat, and I guess that that is what I was doing as well in my initial response in this post.  And so I also understand why the former prosecutor feels the need to protect himself and his family.

This situation is not about me, it’s not about the former prosecutor, nor the current prosecutor, nor the magistrate – nor the Watchman.  This is about Mr. Watson, who made the intentional choice to consume alcohol and drive a dozen children off of a 120 foot cliff in a Monroe County school bus.  This is about Mr. Watson, who tried to save his own skin by lying and claiming that he consumed Nyquil the night before.  This is about Mr. Watson, who misled much of the community into believing that he was innocent, only to let them down with the sad truth – that he had an alcohol problem.  But, he still didn’t want to lose his job, and he didn’t want to lose his retirement.  That was what Mr. Watson was worried about.  Was he worried about the children on board his reckless DUI school bus?  No, he was worried about himself.  This is about the fact that Mr. Watson received a plea deal where only two days was recommended, and where he only received twelve (to serve on the weekends at his leisure).  

When I was working as a young prosecutor in Raleigh North Carolina, I tried a man for 2nd offense DUI.  He was convicted and sent to jail for one year.  There was no accident, no children in the car, no adults in the car – nobody injured whatsoever.  He was just some guy who got pulled over and failed some field sobriety tests.  That was a serious charge.  He was the first person I sent to jail as a prosecutor.  I’ll never forget the image of a deputy walking up behind the man and putting him into handcuffs.  Imagine if this man, when he was pulled over, had a child in the car?  Imagine if he had a dozen children in the car.  Imagine if he had a dozen children in the car and drove off a 120 foot cliff.  Imagine that he did this with your child in the car, entrusted to his care, and that afterwards he lied and told you that it must have been the Nyquil he took the night before?  My point is, this is about protecting the children.  We should have made an example of this man.  He was a school bus driver for heavens sake!  The citizens of Monroe County trusted him to drive their children to school and back every day!

I have been on the other side of the coin as well.  As a defense attorney in Greenbrier County several years ago, I had a client who was convicted of 2nd offense DUI.  We begged and pleaded to the judge for a light sentence, since he wanted to join the military.  The guy was sentenced to one year in jail – and he actually went to jail for about 8 months before he got out of jail.  He wore the orange jumpsuit and ate the awful food for breakfast, lunch and dinner – everyday.  He did his time.  He didn’t whine or complain.  He served his debt to society. 

My argument is simply this: did this man not deserve a real punishment?  Would it really have been a great miscarriage of justice if this man had really been forced to serve a real sentence in jail?  I don’t think so.  It happens all the time in 2nd or 3rd offense DUI cases.  Is it not more egregious for a man to get drunk and then drive a school bus loaded with children?  And then to actually crash off a cliff?

Since the Editor criticized me for making “no effort to discuss the issue with Mohler before writing [my] scathing assessment…” then I will reiterate the same offer that always exists on this blog – both to subjects of my posts and to casual observers: if you disagree with something I have said, then please, by all means, leave a comment on the blog. As always, anonymity will be maintained where requested.

- John H. Bryan, West Virginia Attorney

Opinion Piece in Register-Herald Regarding Monroe County School Bus DUI

As some of my readers will remember, I was given some flack in the community for speaking out early against this bus driver – Clyde Watson. And as it turns out, Mr. Watson proved himself to be a disgrace after all. The really mind-numbing part of this is, that people in Monroe County love this guy for some reason. It seems he is the “everybody’s favorite uncle” type. The editorial slams Monroe County for the way in which this case was handled.

The editorial places some blame on the prosecutor, and I must now stick up for him with respect to the most-generous plea deal. The previous prosecutor made the plea agreement. No matter how ludicrous the agreement was, it was the current prosecutor’s duty to follow-through with that agreement. It is no different than if he made the agreement himself. So, it was not his fault that the plea agreement was executed.

The paper gave a lot of flack to the magistrate, who gave the guy a 12 day sentence, to be served on the weekends at his leisure. To her credit, she actually increased the sentence from what the previous prosecutor had agreed to recommend – which was 2 days. However, it seems that the guy just walked in and asked to be sentenced quietly – without a lawyer, and without the prosecutor (or any victims) present. The paper did note that the magistrate made a phone call to the prosecutor to make sure that the sentence was okay with him.  Actually, this is pretty much what always happens in misdemeanor cases in magistrate court.

Welcome to the world of magistrate court. The prosecutor is king. The prosecutor wants X, he gets it. The prosecutor wants Y, he gets it. Trust me, I am still waiting on a phone call from a magistrate requesting my blessing for someone’s sentencing. And this is the way things happen. If you are charged with a felony, there is a boatload of paperwork and formal procedure (and legal mumbo-jumbo). But, if you are charged with a misdemeanor, then you are in magistrate court, and things appear, disappear, reappear, and are modified, with not much more than the stroke of a pen or a phone call.  That’s just the way it works.

Observing from the ivory tower is one thing, but in reality, what could have been done differenlty by this prosecutor and this magistrate? About the only thing the prosecutor could have done differently is make sure that the victims were given the opportunity to speak at the sentencing. But then again, that is almost never done in misdemeanor cases.  He could not have recommended or argued for anything more than 2 days.

The magistrate could have reviewed the presentence investigation report (“psir”) prior to the sentencing, and could have scheduled the hearing for a date when the victims and their families could have been there to speak. But in reality, if a psir was prepared, the guy was most likely petitioning for probation, in which case the sentencing should have been in circuit court, where psir’s are regularly prepared and reviewed. Furthermore, this also almost never actually happens in these misdemeanor cases.  Even with felonies in circuit court, this is mostly a formality. The biggest thing of substance that she could have done is to give the guy a larger sentence. How about some real jail time? How about a year in jail? 6 months? How about 30 days of real, actual, jail time? He would have deserved it. But it would have been extremely unusual for a magistrate to stray that far from the recommendations of the prosecutor.  In fact, she already exceeded the prosecutor’s recommendation fourfold….

So if justice was not served in this situation, the Register-Herald can point their finger at the former prosecutor.  But there is no sense in doing that, because he already lost his job, and that probably was partially due to this case.  And nothing positive is served by rubbing salt in his wounds.

Despite the “slap on the wrist,”  Mr. Watson suffered a punishment that is rarely given in misdemeanor offenses: major coverage and castigation in a prominent regional newspaper.  Henceforth, any time someone googles his name, these articles will come up.  It will be difficult for him to ever get past this time in his life…  I don’t know about you, but I would rather do a stint in jail than have your darkest hours broadcasted to the surrounding 5 counties, to live in perpetual existence on the internet.

You can read the full editorial here.

- John H. Bryan, West Virginia Attorney.

Client Decisions, Prosecutors and Secrets

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

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

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

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

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

– John H. Bryan, West Virginia Attorney.

Police Officers and Domestic Battery in West Virginia

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

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

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

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

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

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

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

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

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

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

– John H. Bryan, West Virginia Attorney.

More Justice in Magistrate Court…

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.

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

– John H. Bryan, West Virginia Attorney.

Monroe County Prosecutor Resigns, Successor To Be Appointed

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.

Bluefield Man Pleads to Voluntary Manslaughter – Not a Bad Deal

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.

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

In Greenbrier County:

For Prosecuting Attorney, incumbent Kevin Hanson lost big, and at the top of the Democratic ticket for the general election will be Martha Fleshman, who was a complete dark horse in the race. According to the Register-Herald article linked below, she spent only about $1,400 on the race — not including the $992 filing fee. She will face fellow attorney Pat Via, who by the way is an all-around good guy.

For Circuit Judge, incumbent Judge Pomponio emerged victorious over Lewisburg attorney Steve Hunter. He will face Lewisburg attorney (and State Senator) Jesse Guills in the general election.

See the Greenbrier County results here.

UPDATE: The Register-Herald published an article Thursday regarding the county prosecutor race in Greenbrier County, which you can read here.

In Monroe County:

For Prosecuting Attorney, incumbent H. Rod Mohler also lost big – to challenger Justin St. Clair who is a Monroe County Attorney and also an all-around good guy. This was a big race because Rod Mohler had been Prosecuting Attorney for 12 years, and he is also a really nice guy with a lot of support. Justin had been positioning himself to run for the last four years and his hard work paid off.

For Circuit Judge:

Judge Robert Irons narrowly won by about 200 votes. This was a difficult race because it pitted Monroe County voters against Summers County voters, each voting a majority for their resident candidate. I believe the voters made a wise decision as Judge Irons has served the 31st judicial circuit well since he has held office.

See the Monroe County results here.

In Summers County:

For Prosecuting Attorney, incumbent Amy L. Mann, pulled out a major victory over challenger Jason Parmer, grabbing 2,277 votes over Parmer’s 1,280. This race had gotten nasty in the final weeks leading up to the election, and apparently that didn’t play well with the voters of Summers County. In my opinion, the most important quality of a good prosecutor is sympathy and compassion. Not all persons charged with a crime deserve life in prison. Most are generally good people, and most will be back out on the streets before long. A prosecutor who will treat defendants as they themselves would want to be treated, can clean-up the streets much faster than a “lock-em-up-throw-away-the-key” prosecutor. Amy is a compassionate person, and she uses her discretion wisely. But she also knows when to fire both barrels – trust me.

See the Summers County results here.

– John H. Bryan, West Virginia Attorney.

Probable Cause Found in Bluefield Shooting Case – Preliminary Hearings Basically Meaningless in West Virginia

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.

Mercer County Teacher Charged With Sexual Abuse- Illustrates Abuse of the Law

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.

Nicholas County Prosecuting Attorney Charged With DUI

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.

Martin Found Guilty in Fayette County Triple Murder Case – Prosecutor Attacks the 2nd Amendment

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.

Not Guilty Verdict in Summersville Sexual Abuse Case

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.

Special Prosecutor in Sawyers Case Arrested for Domestic Battery

From the Register-Herald:

Assistant prosecutor says he’s still on the job

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

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

By Christian Giggenbach
Register-Herald Reporter

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

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

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

When reached by phone Thursday, Dotson denied those claims.

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

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

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

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

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

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

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

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

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

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

Monroe County School Bus Driver BAC was .093

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

Greenbrier Grand Jury Rejects Felony Charge for Sawyers

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.

Defense Motions Denied in Leftwich Murder Case

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.

Truck Driver Indicted in Fatal Nicholas County Wreck

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.

38 Former Duke Lacrosse Players To Sue

From today’s Charleston Daily Mail:

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

38 former Duke lacrosse players plan to sue

by Newsday

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

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

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

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

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

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

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

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

Update – Monroe County Bus Driver Had Possible Medical Condition

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.

Former NJ Detective Running For Sheriff of Summers County

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.

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

From today’s Beckley Register-Herald:

Special jury called for prosecutor beating

By Christian Giggenbach
Register-Herald Reporter

LEWISBURG — A Greenbrier County judge has ordered a special grand jury to convene next month to decide if a sheriff’s deputy will be indicted for allegedly beating county prosecutor Kevin Hanson last year during a front yard altercation.

Special prosecutor Dan Dotson of Braxton County filed a motion in circuit court last week and Judge James J. Rowe issued the order Friday for a special grand jury to convene March 18. The order also states that no member of the February grand jury, which meets today, may be called for the special grand jury.

Dotson said a special grand jury was necessary because the victim in the case, Hanson, presents evidence for indictments to the regular county grand jury.

Deputy Kevin Sawyers, a seven-year veteran of the Greenbrier County Sheriff’s department, has been charged by State Police with unlawful wounding stemming from an altercation with Hanson last August.

Dotson said up to 25 citizens may be called upon to comprise the 16-person jury. At least 12 jurors must vote that probable cause exists that a crime has been committed in order to “return a true bill” or indictment.

“The people that will hear the case must not have any ties to the recent grand jury,” Dotson said by phone Monday.

Names for grand jury lists come from DMV and tax records, as well as voting registration lists, Dotson said.

During a grand jury, prosecutors normally question the arresting officer and present evidence about the alleged crime. Rules of evidence are not followed and hearsay is allowed during a grand jury.

The accused may also testify in front of a grand jury, which is rare, but it must be done outside the presence of his or her lawyer. Judges give instructions to grand juries about the elements of a crime, but are not present during any questioning.

In September, a misdemeanor battery charge was upgraded to the felony charge of unlawful wounding against Sawyers.

Hanson, the county’s prosecutor since 2001, spent several days in a local hospital recovering from his injuries. He has not been charged in the incident.

Dotson said Hanson suffered a broken nose, separated shoulder, bruises, swelling, lacerations and abrasion from Sawyers’ attack.

The criminal complaint filed by Princeton State Trooper Sgt. M.R. Crowder states Sawyers, 37, “arrived at his estranged wife’s residence” on Aug. 2 and found Hanson “in the driveway area.”

Sawyers had previously filed for divorce from his wife, who is employed as a legal assistant at the county prosecutor’s office.

Sawyers’ defense attorney, Tom Czarnik, could not be reached for comment Monday. Sawyers remains free on $2,500 bond and was placed on paid administrative leave from his job pending the resolution of his charges.

If convicted, Sawyers faces a maximum prison sentence of five years.

Note: My guess would be that this case will go to trial – before a jury. A couple of things to point out: here you have a 7-year veteran of the Sheriff’s Department beating up the elected prosecutor. He was initially charged with misdemeanor battery, but the charges were upgraded to a felony after a “special” prosecutor was brought in on the case. Much like cops, prosecutors don’t take too kindly to one of their own getting attacked. You have to wonder if the everyday bar fight – albeit with injuries requiring hospitalization – brings a felony charge. I haven’t seen very many of those. Misdemeanor battery will probably be offered as a plea, but if he takes it he surely will lose his job. Thus, I think this case will go to trial. Historically, the husband-beats-up-other-man-with-wife defense has faired pretty well before juries – even in murder cases. Furthermore, this defendant is an Iraq war veteran, and probably a pretty sympathetic guy. I give him a good shot at being acquitted. – John H. Bryan, West Virginia criminal defense attorney.