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.
As explained by the Charleston Gazette this morning, new rules have been adopted for West Virginia appeals to the WV Supreme Court of Appeals, which will become effective in December of this year. This is a significant change for criminal defense in West Virginia. The Court will still be able to deny a criminal defendant’s appeal. However, from that point forward, the Court will have to give a reason for that denial.
Since 2004, it has been a concern of mine that persons convicted of sex crimes in West Virginia essentially will have no possibility of appeal. The problem is that the justices must campaign for election or reelection. In 2004 a justice lost his bid for reelection, mostly due to negative campaign advertising alleging that he freed a convicted sex offender (despite the fact that it was the correct decision legally – and despite the fact that there was obviously a majority consensus in that particular case since no justice can act alone). After that, what justice is going to want to reverse a conviction for any sex offense, regardless of what the correct legal decision is?
I’m not trying to protect child molesters. The fact is that “sex crimes” have turned into Salem witch hunts. The average person would be stunned at how many “sex crimes” there are. The small minority involve conduct which the average person would deem to be child molestation. The end result is that we have watered down the sex offender registry with individuals about whom people are generally not concerned. So when you actually have a child molester, it basically goes under the radar.
The average person would also be staggered at the volume of legislation and bureaucracy dealing with sex offender registration. It has taken over West Virginia’s criminal code, and is beginning to take over parole in West Virginia. Now, sex offenders will almost always qualify for “extended supervision” by WV parole officers. So if you are convicted of a sex offense, at the behest of the prosecutor, even after you serve your time you can be supervised (basically be on probation) for decades – in addition to already being required to register as a sex offender for life (the rules and intricacies of which would take about a week to explain). You can be forced to take polygraphs and wear an ankle bracelet.
We should be provided an accounting of how much taxpayer money is spent on the sex offender system. I bet it would be staggering. I would also like to know how many children it has saved from harm. Probably very few. Its like making schools “gun free” zones. It does nothing to accomplish its alleged purpose, and actually ends up doing more harm than good. Teachers or adult students cannot be armed to defend themselves and others. Likewise, parents will have no idea a real sex offender is in their neighborhood – because there are so damn many “sex offenders” that the truly dangerous ones get lost in the crowd.
Good people, who pose no threat to the public, can and have gotten caught up in this witch hunt. Politicians, nor judges, are willing to take a step back. This is a mob mentality. The “sex offender” brand rules – just like a witch. If you step into the way of one of these prosecutions, you are in support of child molesters – you are a witch, and you lose your seat, or lose your bench.
Of course, we don’t need career politicians anyways. Maybe judges, but not politicians. At least now there is a right to be told why a criminal appeal is being denied. Next, we need reform. Just like taxes should be cut, laws should be cut. Let’s stick to the basics. When we make everything a crime, we give corrupt or power hungry prosecutors the power to charge anyone for anything at anytime. Never a good idea. Some are just bad apples. The scary thing is, that bad prosecutors have a common trait: their will to win and avoid embarrassment is greater than their respect for justice. They will convict an innocent person to save face, or even to achieve personal retribution or revenge. And the ignorant electorate has no idea. They hear a radio ad touting how “tough on crime” the prosecutor is, and they vote for him. Elections are not won by promising to ease up on criminal prosecutions, or by promising leniency or mercy. Again, it’s a mob mentality. The WV Supreme Court should be completely insulated from the mob. Hopefully that will be a future reform.
The Charleston Gazette published an article today entitled, “Woman alleges trooper forced sex.” This is an odd case. Something just isn’t right. The allegation is that this woman was leaving a bar in downtown Charleston and was pulled over by this trooper for suspicion of DUI. During the course of the DUI stop there was some conversation between the two and the trooper ended up following her home to her married friends house. There she alleges that he pressured her to have sex and that she only complied because he was a state trooper.
The really surprising part is that this was at least partially caught on a surveillance camera by the married couple who lived in the home.
If I’m wearing my police liability hat, this sounds like a good case with rare video tape evidence of police misconduct and a potential rape situation. But when I put on my criminal defense hat, this seems extremely suspicious. The central question that I want answered is, who, what, where, why and how was this surveillance footage captured? Could this be a set-up? Did she call ahead? If so, why not just call 911?
With respect to a police liability civil case, there’s really no excuse for the trooper to have been in this house. He most likely will have to explain that he went there consensually with her, which may not be illegal, but may get him fired and may get the State sued. But from a criminal case standpoint, this woman’s story is extremely fishy. It will be interesting to find out what the deal is with this video.
- John H. Bryan, West Virginia Attorney
From the Register-Herald today:
A Beckley man has been arrested and charged with his second offense of “failure to register as a sex offender.” Well, the guy was registered, you can look it up yourself on the WV Sex Offender registry, found here.
What crime did he commit? His wife (presumably) bought a car and it had his name on it. He didn’t notify the State Police within the required amount of days the statute requires. If you didn’t know, a conviction as a sex offender requires the person to notify the State Police anytime they do or buy anything.
I don’t have a problem with this when it comes to real sex offenders – you know, the child abductors and child molesters, etc. In fact I think we should increase the penalties and protections against these predators. But any “sexually-motivated” conviction brings the requirement to register as a sex offender for life. That waters down the purpose of the sex offender registry. Not every sex offender is dangerous. Not every sex offender deserves to be subjected to the sex offender registry.
What about the guy charged in this case? A glance at his “offender details” reveals that he was convicted in the year 2000 of two counts of 3rd degree sexual abuse. He was given a suspended sentence and 15 months probation – so he did not do any jail time. What is “3rd degree sexual abuse” exactly, and how is that different from 3rd degree “sexual assault?.” Third degree sexual “assault” in West Virginia is essentially statutory rape – sexual intercourse between someone 16 or under and someone over 16 and also 4 years older than the “victim.” I put “victim” in quotes because many times the “victim” is absolutely old enough to be responsible for his or her actions and that fact should not be ignored. The “Assault” charge is a felony and carries up to 5 years in prison.
Third degree sexual “abuse” occurs when one person subjects another person to “sexual contact” without the latter’s consent, when such lack of consent is due to the victim’s incapacity to consent by reason of being less than 16 years old. What is “sexual contact?” It could be slapping someone on the rear-end, or an improper touching of any sort. It doesn’t take much. Actually it could just be a lie. Poor saps are convicted all the time from some 15 or 16 year old girls testimony before a jury, and without much more evidence – and it could very well be a lie. The only defense to this is a good lawyer who can talk some sense into the jury.
Lastly, the victim must be less than 16 years old. That means that the old-farts in the state legislature decided that a young girl on the day before her 16th birthday is absolutely incapable of forming her own decisions, she cannot consent to sexual conduct, but one day later, this 16 year old girl can have all the sexual escapades that she wants. In one magical day, she has become a wise and responsible adult.
So what about the guy in the article? I have no idea what the facts in the case are, but it could be relatively minor, or he even could be innocent. On the other hand, he could have done something more serious and pled down to this charge. Who knows. The point is, that even for relatively minor “sex offenses,” non-dangerous people are subjected to a life of being charged with felonies every time they buy a new car or go on vacation. The charge they put on this guy is a felony and brings 10 to 25 years. And the original charge that he was convicted of was a misdemeanor and only carried a potential penalty of up to 90 days in jail… Think about that. But hey, just like lawyers, these people do not make sympathetic victims and no one is going to help them.
You can read the full article here.
– John H. Bryan, West Virginia Attorney.
The Charleston Daily Mail published a story today about another child porn bust in Kanawha County. This is proving to be an ever-expanding area of criminal law, both nationally and in West Virginia.
Robert Eugene Simmons, 32, was arrested by members of the West Virginia Internet Crimes Against Children task force after giving officers permission to search his computer, according to the criminal complaint.
The arrest comes less than a week after the first child pornography sting in the Kanawha Valley where ICAC officers used peer-to-peer file sharing to observe child pornography distribution. This type of observation has already been successful elsewhere in the state.
The article stated that: “Simmons, and others arrested for distributing child pornography, may face more charges after their computers’ hard drives are examined, said State Police Sgt. P.C. Koerner, who aided in Tuesday’s arrest.”
For any defense attorneys who have not yet faced charges such as these, here is what they have been doing: they seize the computer, it then is sealed and placed in the State Police detachment evidence room. They then have the option of doing a “live preview” of the hard drive to essentially take a peek at what could be on the hard drive. Then the computer is transported to Huntington, West Virginia, to the state’s forensic computer expert. At that point, the proper procedure is to make a “clone” of the hard drive before anything else is done with the computer.
The article further stated that “Each file shared over the Internet has a fingerprint attached to it. What we’re able to do is, we’re able to track where those files are going. As a computer forensics expert will tell you, each file has should be “hashed” which gives you this “fingerprint” – and if that is not done, then there could be some deficiencies with the evidence.
With child porn charges, defendants can be charged in state court, or they can be charged federally. The federal charges bring a minimum sentence of 10 years. If the charges are federal, it can alter your access to the evidence (i.e., computer). Federal prosecutors demand that the defendants attorneys or experts not be allowed to possess their own “clone” of the hard drive, as can be allowed if the charges only exist at the state level. I’m not sure what makes the federal prosecutors God, but for some reason the state police and defense experts are afraid to disobey the AUSA’s demands.
The protocol they use is this: they first make a clone of the hard drive, then the defense clone gets placed in a safe in the evidence room; the defense is given the only key, then when they want to analyze the computer, you are forced to do it under supervision of the state police. Now, if the charges are in state court only, then you can get an order from a circuit court judge to possess a clone of the hard drive. By the way, the feds insist on this even if no child porn has yet been found on the hard drive.
Speaking of experts, it is extremely important to retain an defense expert from the very beginning. The state has an expert are their side from the very beginning. You must have a forensic computer expert who can observe any and all manipulation of the hard drive by the state’s experts, as well as perform his or her own analysis of the hard drive. The important thing here is to prevent spoilation of evidence that could be exculpatory, and to foreclose the possibility of any manufacturing of evidence by the state, as well as to be able to give an opinion at trial regarding the reliability of the state’s procedures. If anyone is in need of an expert for computer-related charges, contact me and I can put you in touch with a very good one.
I think this is a trend we will continue to see in West Virginia, both with child porn charges, and with online solicitation charges. There is not much case law yet in this state for these types of cases, so many of the defenses have not yet been tried as they have in other states.
You can read the full article from the Charleston Daily Mail here.
– John H. Bryan, West Virginia Attorney.
From the Charleston Daily Mail:
A Montcalm High School teacher accused of having a relationship with a student faces sexual abuse and abduction charges.
State Police First Sgt. Gary Tincher says 30-year-old Christi Lee Williams was arrested in late April.
Williams remains free on bond after being charged with sexual abuse by a parent, custodian and guardian and abduction of a student within 1,000 feet of a school.
Tincher says Williams is accused of having a relationship with a 16-year-old male student who allegedly left school property with her.
Tincher says the teacher has been suspended from her job.
What is the deal with young, attractive teachers across the country having these sexual relationships with young boys? I can’t remember hearing anything like this when I was in high school – other than in a Van Halen song.
Let’s look at the charges: First, abduction of a student within 1,000 feet of a school. Okay, that charge is garbage. The kid was 16 – old enough to drive, and actually 16 is the age of consent. The allegations are that he went willingly. Prosecutors and legislators can make up whatever law and charges they want, but the fact is that there was no abduction. This is just a garbage charge to help them get a plea.
Secondly, sexual abuse by a parent guardian or custodian. This is the most abused and misused charge on the books. The reason is this: in almost every situation, like it or not, the legal age of consent in West Virginia is 16 years old. That means that ignoring relationships, this 16 year old kid can have sexual relations with whomever he wants. However, if there is a relationship, then all of a sudden the other party goes to prison for 10 to 20 years. That’s right, that is the punishment for this charge (something that you are not allowed to tell the jury). So, if the prosecutor alleges the other party is a babysitter, teacher, whatever – even if the kid is 16 or 17 and has his own car and drives all over the place, it then becomes punishable by 10 to 20 years. This is an abuse of the law. The charge was meant to cover awful situations where parents or actual guardians abuse children under their care. The problem is that the statute was written much to broadly, thus allowing police and prosectors to abuse it. For instance, this woman is facing 10 to 20 on that charge. Under the statute, technically, she can be convicted on it. The jury never gets to know that she will get 10 to 20. They will assume she will get probation, or maybe 6 months or a year. She will get convicted on the charge, despite the unfairness of it. The end result is, that her lawyer will most likely advise her not to take the chance of going to trial, and to accept the plea offer of misdemeanor battery with a sexual motivation, or something like that, which will put her in jail for a year and make her a registered sex offender for life.
Read the full article here.
– John H. Bryan, West Virginia Attorney.
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.
Part of the reason that I have not posted lately is because I was preparing for a jury trial in Summers County, West Virginia, in a third-degree sexual assault case – basically a “he said – she said” situation. I am pleased to note that the trial went extremely well. It lasted for about a day and a half. After the jury deliberated for about an hour and twenty minutes on Friday, they came back with a unanimous verdict of not guilty.
It is interesting to note that the investigating officer in the case testified on the witness stand during cross examination that trace evidence disappears after 3 weeks. I asked him if he ever watches “Cold Case Files”…. He replied that he did not. I have a feeling however that the jurors had seen it.
- John H. Bryan, West Virginia Attorney.
From the Beckley Register-Herald:
Man faces 400 counts of sexual assault
Bond was set at $12 million for a Summersville man who is facing 400 counts of first-degree sexual assault by a parent, guardian or custodian.
Howard H. Neil, 70, of 147 Euclid Drive, was taken to Central Regional Jail following his arrest Monday.
A preliminary hearing is scheduled this morning in magistrate court, but Nicholas County Prosecutor Mark Hudnall said Thursday it was unlikely the hearing would proceed because Neil had not retained an attorney.
The alleged assaults occurred over the course of four years, 1998 to 2002, when the child was between the ages of 7 and 12.
Hudnall said the investigation is continuing.
Sheriff’s deputies arrested Neil on Monday because it was believed he posed a flight risk, Hudnall said.
The investigating officer Deputy Vicki Rains.
— Bill Billeter
From the Charleston Daily Mail:
Man fails to register as sex offender after moving
by Zack Pettit
Daily Mail staff
A Charleston man was arrested for failing to register as a sex offender after moving from Putnam to Kanawha County.
West Virginia State Police Sgt. K.S. Dickson obtained a warrant for James Roy Arthur, 36, in February, after learning he moved from his registered address, according to a press release from Sgt. Kenneth McCord.
He was discovered at a Kanawha County residence Tuesday and arrested without incident, the release said.
Arthur was arraigned on the felony warrant for failing to notify police of the move, and an additional 12 felony counts ranging from failing to report his new telephone number to neglecting to notify police of his Internet service, the complaint said.
He is being held at South Central Regional Jail on a $1,000 bond, the release said.
Arthur was convicted of second-degree sexual assault in 1994 and served about ten years in prison, but since the crime involved a juvenile, he is required to register his information with police for life, the complaint said.
People convicted of sexual related crimes are required to register annually with State Police, and must notify them of any changes within ten business days of the change, the complaint said.
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