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.
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.
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.
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.
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.
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
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.
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.
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.
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.
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.
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.
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