Handling the Police Liability Claim Seminar
On September 20 I am assisting in the presentation of the “Handling the Police Liability Claim” seminar in Charleston, WV at The Summit. This is being put on by the National Business Institute. Here is a link to the website if you are interested in attending. I can tell you that the other attorneys who are presenting are some of the best in the business and it will be worth the time and money. This is the fourth time that I have assisted in putting on a similar seminar, and some of the past attendees I have gone on to have civil rights cases with, and civil rights cases against. It is truly a mixture of plaintiff’s lawyers, defense lawyers, and others. I’ve met county commissioners, city attorneys, prosecutors, etc. I always come away with new ideas, new contacts, and of course continuing education hours.
New WV Excessive Force Lawsuit Filed – in Parkersburg Again
This week we filed yet another federal excessive force and civil rights lawsuit in Parkersburg, West Virginia. This one is a little bit different though, because city officials, as well as the City of Parkersburg, are included as defendants. See exhibit “1″ below for more information.
The Complaint:
Exhibit 1:
Media:
News and Sentinel article from June 7:
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News and Sentinel article from June 8:
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Speak of the devil: Parkersburg Mayor Calls the FBI
It wasn’t a week ago that I mentioned the newspaper article regarding the indictment of a Parkersburg Police officer. Obviously I have some experience with Parkersburg. I settled a case against the Parkersburg Police Department about a month ago, and I also have one other case pending there in federal court against the county. In my last post I inquired as to when we would hear from the Parkersburg Mayor Bob Newell. Well we did hear from him. According to the latest news reports, he has now called the FBI on his own police department.
As the old saying goes, be careful what you wish for.
Mayors of decaying cities are liberal, know-it-all, hypocrites
There was an article in the Charleston Gazette, a few days ago, “Lawsuit challenges W.Va. city gun laws” which explained that “a pro-gun lobbying group” filed a lawsuit (or lawsuits rather?) to overturn gun control laws in four West Virginia “cities”: Charleston, South Charleston, Dunbar and Martinsburg. The lawsuit was filed by the West Virginia Citizens Defense League and challenges Charleston’s limits on the number of handguns a person can buy in a month, as well as the city’s prohibition on possessing firearms on city property, such as in city parking garages.
Charleston, WV Mayor, Danny Jones, was quoted in the story:
Charleston Mayor Danny Jones promised to fight the lawsuit.
. . .
Jones noted the lawsuit was filed in the Charleston federal courthouse where firearms are prohibited.
“All we want is what they have. We want to be able to control our own property,” Jones said. “I don’t know how far these people want to go.”
Jones is one of these know-it-all hypocrite slum lords, who has a police force to protect him, and who denies his subjects, or anyone else venturing into his slum-dom, who are actually law abiding citizens, from possessing legally owned and carried concealed weapons. So if you go into a city-owned parking garage in Charleston, WV, by law you are not allowed to have the ability to protect yourself. Of course in a decaying city full of drug addicts, who would need a gun to protect themselves in a darkly-lit parking garage? Jones doesn’t trust us law abiding citizens to abide by the law.
Interestingly, there was an article in the Charleston Gazette today, that Mayor Danny Jones’ son was arrested for possession of heroin within the slum-dom. This was the statement from Jones’ “mayoral assistant”:
Mayor Jones had no comment about his son’s arrest. Rob Blackstone, mayoral assistant, said, “It is what it is. He’s 21 years old.”
There you have it. Law abiding gun owners just need to stay out of Charleston. Because we all know there is nothing stopping the criminals and drug addicts from obtaining and possessing guns on “city property”. Probably the first place they go to rob somebody will be the city parking garages.
I don’t think these mayors are stupid. They don’t actually believe that their gun control laws will protect people. They have a liberal and/or ignorant majority of voters, who have an ideological hatred towards guns and law-abiding gun owners, whom they see as right-wing fanatics. This fits their agenda. Moreover, the more freedom they take away from their subjects, the more power they gain. Their subjects are made to depend on their protection.
Maybe Danny Jones should worry about the crime/slum/drug problem in his city, instead of wasting taxpayer money promising to fight lawsuits and trying to “control [taxpayer] property”. He obviously has no control, including over his own son.
Why should you refuse to talk with the police?
You should refuse to talk with police because just about every darn thing you could ever do or think is illegal somewhere at some place and time. And if it isn’t, the police may say you do something else that is illegal.
Estimates of the current size of the body of federal criminal law vary, but it has been reported that the Congressional Research Service cannot even count the current number of federal crimes. And these laws are scattered in over the 50 titles of the United States Code, encompassing roughly 27,000 pages. Worse yet, the statutory code sections often incorporate by reference the provisions and sanctions of administrative regulations promulgated by various regulatory agencies. Estimates of how many such regulations exist are even well less settled, but the American Bar Association believes there are nearly 10,000.
For instance, 16 U.S.C. Section 3370 makes it a federal offense for any person to “import, export, transport, sell, receive, acquire, or purchase any fish or wildlife or plant taken, possessed, transported, or sold in violation of any law, treaty, or regulation of the United States or in violation of any Indian tribal law or regulation of any state or any foreign law.
Many people have been prosecuted federally under this statute, which can make it a federal crime to possess a lobster which is too short under some state’s law, or to possess a bony fish from Honduras, which is prohibited in Honduras (though not in the U.S.) – and so on and so forth. And this is only 1 out of approximately 10,000. And this doesn’t even include West Virginia’s lengthy list of state crimes.
Media Coverage
Yesterday I attended a hearing in a high profile case. It’s one of those cases where there is public outrage at what happened – one of those cases where the public gets a lynch-mob mentality and the prosecutor and law enforcement press hard for the toughest conviction(s) which they believe they can get (regardless of whether they are justified). There was a news camera in the courtroom. This was not my first case to be followed by local news cameras.
Every single time I have a high profile criminal case, I am awed by the lack of neutrality by the press. They completely ignore the constitution. They ignore the facts. They convict people in the media. They infect the potential jury pool with ignorance, and with the law enforcement mentality that everyone they charge is guilty, and that the public is being served by the prosecution.
How is someone, especially in a case like this, supposed to get a fair trial? Good luck on getting a change of venue. It hasn’t happened for me yet, and I have had some good cases for it.
It’s amazing that as a large mass, the public craves news of prosecutions and convictions. Juries who acquit defendants are publicly and privately condemned. Prosecutors who do not meet their expectations for severe punishment and mass incarceration are voted out of office (or at least campaigned against). Yet, when you separate out 12 individuals and intimately discuss a case with them, and justice in general, reason once again reasserts itself into the situation. Young and old. Republican and Democrat. Liberal and Conservative. The jury system is a protection against the lynch mob. The lynch mob is blinded to the constitution and to the truth. It operates on blind passion and ignorance.
Local news media feeds that monster everyday. Just watch local news. They talk about this conviction, and that conviction, and that this man will go to prison for X amount of years, and so on and so forth. You never read or hear about acquittals, unless of course it is set in the context of some slimy lawyer getting a guilty person off on a technicality.
- John H. Bryan
No pun intended….
One of the interesting things about having a blog is that you get to see exactly how many people visit, as well as what brought them there, including search engine searches. Sometimes I look at these statistics, sometimes I don’t. I just happened to look this morning, and apparently one person was brought here this morning by searching “West Virginia’s most notorious criminal,” and another was brought by searching “greatest West Virginia criminal defense attorneys.” I’ll just let that speak for itself.
- John H. Bryan, West Virginia Attorney.
Shuttle returning to Florida
Here is a picture my father took of the shuttle returning to Cape Canaveral atop the 747. It apparently was flying pretty low. This location is still about 50 miles south of Cape Canaveral.
It’s time for “zero tolerance” for brain dead government employees…
In Colorado, a graduating high school senior with a 3.5 grade point average, who was a member of the young marines’ drill team, was suspended for having mock rifles made of wood and duct tape in her car on school property. She is being told by the school that she may be expelled due to Colorado’s “zero tolerance” law regarding guns – or even likenesses or images of guns – on school property.
Political correctness and incompetent government teachers and employees are doing their best to turn our citizens into a bunch of wimps, who can’t even handle seeing a fake gun spun by a burgeoning marine - a remarkable young woman who is getting ready to serve her country in order to give those idiot government employees the safety and security that they take for advantage everyday.
General George Patton must be turning over in his grave. The generation we are producing now is not capable of living up to the same set of challenges as his generation. To prove my point: General Patton gave this speech to the Third Army in 1944 – to men who grew up as regular Americans, but who were now faced with the seemingly impossible task of facing the brutal Nazi war machine:
- Men, this stuff that some sources sling around about America wanting out of this war, not wanting to fight, is a crock of bullshit. Americans love to fight, traditionally. All real Americans love the sting and clash of battle. You are here today for three reasons. First, because you are here to defend your homes and your loved ones. Second, you are here for your own self respect, because you would not want to be anywhere else. Third, you are here because you are real men and all real men like to fight.
- Americans love a winner. Americans will not tolerate a loser. Americans despise cowards. Americans play to win all of the time. I wouldn’t give a hoot in hell for a man who lost and laughed. That’s why Americans have never lost nor will ever lose a war; for the very idea of losing is hateful to an American.
- Every man is scared in his first battle. If he says he’s not, he’s a liar. Some men are cowards but they fight the same as the brave men or they get the hell slammed out of them watching men fight who are just as scared as they are. The real hero is the man who fights even though he is scared. Some men get over their fright in a minute under fire. For some, it takes an hour. For some, it takes days. But a real man will never let his fear of death overpower his honor, his sense of duty to his country, and his innate manhood. Battle is the most magnificent competition in which a human being can indulge. It brings out all that is best and it removes all that is base.
- Remember that the enemy is just as frightened as you are, and probably more so. They are not supermen.
- All through your Army careers, you men have bitched about what you call “chicken shit drilling”. That, like everything else in this Army, has a definite purpose. That purpose is alertness. Alertness must be bred into every soldier. I don’t give a fuck for a man who’s not always on his toes. You men are veterans or you wouldn’t be here. You are ready for what’s to come.
- There are four hundred neatly marked graves somewhere in Sicily. All because one man went to sleep on the job. But they are German graves, because we caught the bastard asleep before they did.
- An Army is a team. It lives, sleeps, eats, and fights as a team. This individual heroic stuff is pure horse shit. The bilious bastards who write that kind of stuff for the Saturday Evening Post don’t know any more about real fighting under fire than they know about fucking!
- We have the finest food, the finest equipment, the best spirit, and the best men in the world. Why, by God, I actually pity those poor sons-of-bitches we’re going up against. By God, I do.
- My men don’t surrender. I don’t want to hear of any soldier under my command being captured unless he has been hit. Even if you are hit, you can still fight back.
- I believe in the old and sound rule that an ounce of sweat will save a gallon of blood.
- All of the real heroes are not storybook combat fighters, either. Every single man in this Army plays a vital role. Don’t ever let up. Don’t ever think that your job is unimportant. Every man has a job to do and he must do it. Every man is a vital link in the great chain.
- Each man must not think only of himself, but also of his buddy fighting beside him. We don’t want yellow cowards in this Army. They should be killed off like rats. If not, they will go home after this war and breed more cowards. The brave men will breed more brave men. Kill off the Goddamned cowards and we will have a nation of brave men.
- Don’t forget, you men don’t know that I’m here. No mention of that fact is to be made in any letters. The world is not supposed to know what the hell happened to me. I’m not supposed to be commanding this Army. I’m not even supposed to be here in England. Let the first bastards to find out be the Goddamned Germans. Some day I want to see them raise up on their piss-soaked hind legs and howl, “Jesus Christ, it’s the Goddamned Third Army again and that son-of-a-fucking-bitch Patton”.
- Sure, we want to go home. We want this war over with. The quickest way to get it over with is to go get the bastards who started it. The quicker they are whipped, the quicker we can go home. The shortest way home is through Berlin and Tokyo. And when we get to Berlin, I am personally going to shoot that paper hanging son-of-a-bitch Hitler. Just like I’d shoot a snake!
- When a man is lying in a shell hole, if he just stays there all day, a German will get to him eventually. The hell with that idea. The hell with taking it. We’ll win this war, but we’ll win it only by fighting and by showing the Germans that we’ve got more guts than they have; or ever will have. We’re not going to just shoot the sons-of-bitches, we’re going to rip out their living Goddamned guts and use them to grease the treads of our tanks. We’re going to murder those lousy Hun cocksuckers by the bushel-fucking-basket. War is a bloody, killing business. You’ve got to spill their blood, or they will spill yours. Rip them up the belly. Shoot them in the guts. When shells are hitting all around you and you wipe the dirt off your face and realize that instead of dirt it’s the blood and guts of what once was your best friend beside you, you’ll know what to do!
- I don’t want to get any messages saying, “I am holding my position.” We are not holding a Goddamned thing. Let the Germans do that. We are advancing constantly and we are not interested in holding onto anything, except the enemy’s balls. We are going to twist his balls and kick the living shit out of him all of the time. Our basic plan of operation is to advance and to keep on advancing regardless of whether we have to go over, under, or through the enemy. We are going to go through him like crap through a goose; like shit through a tin horn!
- From time to time there will be some complaints that we are pushing our people too hard. I don’t give a good Goddamn about such complaints. I believe in the old and sound rule that an ounce of sweat will save a gallon of blood. The harder we push, the more Germans we will kill. The more Germans we kill, the fewer of our men will be killed. Pushing means fewer casualties. I want you all to remember that.
- There is one great thing that you men will all be able to say after this war is over and you are home once again. You may be thankful that twenty years from now when you are sitting by the fireplace with your grandson on your knee and he asks you what you did in the great World War II, you won’t have to cough, shift him to the other knee and say, “Well, your Granddaddy shoveled shit in Louisiana.” No, Sir, you can look him straight in the eye and say, “Son, your Granddaddy rode with the Great Third Army and a Son-of-a-Goddamned-Bitch named Georgie Patton!
We all know that this speech could not be given now. The next generation tasked with rescuing good from evil will know more about “tolerance” than they will about courage, or about being tough. And these “zero tolerance” laws, where great young kids are getting suspended and expelled for having a boy scout pocket knife in their car – or even for their younger brother leaving a toy gun in the backseat of their car – is at the root of the problem. Or is it just a symptom of a much deeper problem? So what if Johnny high school senior brought his shotgun in the trunk of his car or in his truck because he wanted to go duck hunting after school? God only knows what our grandparents brought to school – and they turned out alright – and ended up saving the world from evil. And the idea of suspending kids for having a mock-up wooden gun for spinning as part of the Young Marines? What’s next? I suppose that only time will tell. What I do know, is that cases like this prove that bureaucrats and their mind-numbed robots are not equipped to prepare our children for the challenges that lie ahead.
- John H. Bryan, West Virginia Attorney.
Clarifications to the State Journal story on the Flanary case
The State Journal posted a story on their website this morning on the Flanary case. Since this blog has been getting a lot of traffic on this case, I have the usually-absent opportunity to correct some slight inaccuracies in the story – including some of my quotes that are slightly out-of-context. Though you can hardly blame the reporter when the Complaint is 45 pages with 39 defendants. The article stated the following:
The case, Flanary v. Pocahontas County et al., like many police or government liability cases, will be hard to prove, according to John Bryan, the Monroe County attorney who filed the suit.
Actually I said that police and governmental liability cases are difficult cases. I was not saying that there was anything particular about the facts of this case that will make it any more difficult to prove than other police and governmental liability cases. The article further noted that:
The alleged incidents occurred in Pocahontas County and many of the involved parties live there as well. But Bryan said he opted against filing the suit there. Instead, the suit was filed in Kanawha County. “I think there’s a benefit to getting the whole mess out of Pocahontas County,” he said.
Actually, since several state agencies are defendants in the suit, state law mandates that the proper venue for the case is Kanawha County. Thus, it really wasn’t my choice – as I explained to the reporter when she asked me why it was filed in Kanawha County. Though it is true that there is an obvious benefit to not having to sue a county in their own courthouse. The article continued:
Upon his release, Flanary had to go back to jail and immediately posted bail. As soon as he was released, court documents said, Snowshoe had him rearrested due to a perceived threat to Rock. Flanary’s lawsuit said the resort then barred him from all Snowshoe properties, including his own townhouse. Court records said Snowshoe officials eventually had him arrested a third time, alleging a harassing phone call between Flanary and a Snowshoe employee that was immediately acted upon by authorities.
Actually, it was vice-versa. The first time he was released on bond, indeed the same day, Snowshoe contacted authorities and said that he allegedly made a threat to commit a crime over the phone. And Snowshoe did not bar him from entering his own townhouse, but they did bar him from all other Snowshoe property – though they didn’t explain to him how he would actually get to his townhouse without touching foot on Snowshoe soil since it sits in the middle of the resort. Then, the second time Mr. Flanary bonded out from jail, Snowshoe had arrested for allegedly driving into the neighborhood that Mr. Rock lives.
- John H. Bryan, West Virginia Attorney
Stranger than fiction…
The strangest thing happened yesterday, and I have proof. My office sent a letter to Directv in Arizona, regular U.S. Mail. But it didn’t arrive there. Instead, it showed up in the mailbox of a physician who is family friend in Melbourne, Florida. But not only is he a family friend, he has a farm in West Virginia as well. It was properly addressed to Directv in Arizona.
Lawyers per capita in West Virginia
Since it was mentioned in my last post that new law school graduates are probably having a tough time during these tough economic times given their annually increasing number, I thought it pertinent to comment on a post at Simple Justice regarding the number of lawyers per capita in New York. I looked up West Virginia for a comparison.
Scott Greenfield writes that for every 21 people in Manhattan, there is one lawyer:
For many lawyers, the “big fish in a small pond” aphorism applies. Not for lawyers in Manhattan. It’s not easy surviving, no less thriving, in an environment so lousy with lawyers. Hesitate and some other lawyer has just jumped your potential new client. Have your receptionist take a message and the next one (or 1000) will take the call.
According to the Avery Index, overall, the District of Columbia leads the states with 276.7 lawyers per 10,000 residents, with the State of New York trailing at 20.4 lawyers per 10,000 residents. Given these numbers, and having worked in D.C. before, I would have to disagree with Greenfield that New York is the most lawyer-saturated and competitive legal market. D.C. is absolutely riddled with lawyers, thanks in most part to the federal government.
West Virginia ranks number 25 on the list with 8.8 lawyers per 10,000 residents, just behind Maine. North Dakota ranks last with just 4.4 lawyers per 10,000 residents. What about individual West Virginia counties? I did my own non-scientific (and most likely non-accurate) study across five different types of West Virginia counties (bear with my math here, I may have done something horribly wrong):
Kanawha County: approximately 1 lawyer for every 106.4 people (roughly 93.98 lawyers per 10,000 residents)
Raleigh County: approximately 1 lawyer for every 528 people (roughly 18.9 lawyers per 10,000 residents)
Mercer County: approximately 1 lawyer for every 450 people (roughly 22.2 lawyers per 10,000 residents)
Greenbrier County: approximately 1 lawyer for every 430.7 people (roughly 23.2 lawyers per 10,000 residents)
Summers County: approximately 1 lawyer for every 812.5 people (roughly 12.3 lawyers per 10,000 residents)
Monroe County: approximately (but slightly more accurate) 1 lawyer for every 2,430.5 people (roughly 4.1 lawyers per 10,000 residents)
Note: these numbers will be slightly overestimated because they also include judges and non-practicing attorneys who reside in the particular county (with the exception of Monroe County since I already took the time to ferret those out)
- John H. Bryan, West Virginia Attorney
Domestic Violence Petitions in WV – Part II
Apparently there are others out there who feel the same way that I do about the rampant abuse of domestic violence petitions in West Virginia. See my prior post here. Among others, and a flurry of comments, I received this email from a reader:
Mr. Bryan:
I read your blog entry regarding the domestic violence (DV) petitions. Many law professionals have raised similar concerns inclusive of numerous judges who vocalized their discontent with pressure exerted on them predominantly by women’s groups. I’m not sure if you have seen this but a study was done attempting to quantify the financial impact to West Virginia regarding DV and false accusations of DV. As you may suspect this is a very difficult task and highly subjective. I have quickly read the report and will dive deeper into it over the coming holiday. Interestingly the impact from false allegations could range from $5.7M to $18.2 M. This is simply an estimate of the direct cost to West Virginia. I would suspect that indirect costs far exceed this number – potentially reaching to $100M. Indirects would include costs like welfare, money going to legal fees that would otherwise be spent in the non-service economy and therefore subject to sales tax, lost production and taxes from people losing jobs, and the cost of social services that are often a result of false allegations (i.e. kids being placed and paid for by public funds etc.). I also believe the direct costs outlined in the report are conservatively estimated (i.e. on the low end). Other costs include substantial tax subsidies to “advocacy” agencies to the tune of literally millions (you should take a look at the VAWA appropriations – it is staggering – not just financially but from a gender discrimination standpoint). If there number of claims were reduced by 60-80% theoretically their operating cost would reduce proportionally.
This issue is far larger and significantly more important than most people realize. Women’s groups understood that oppressing women had serious negative effects on girls. We are now seeing the impact to boys resulting from the systematic discrimination against men. Last year’s college graduation rate was 58% women to 42% men. The steady gap increase is about 1% annually and will be at 60-40 within 2 years. That equates to 50% more women graduating from college than men. Some speculate that this is a result of different learning patterns between boys and girls. I don’t buy it. While our biological differences likely do present logistical challenges it doesn’t explain why it is a problem now and it certainly couldn’t explain the rapidity by which this transformation occurred. The long term effects of this are horrific.
On the DV issue – there are numerous studies that date as far back as the 70’s that prove DV is nearly mutual, meaning it is 50-50. Please don’t misunderstand, I am not advocating that DV is not a problem I am simply stating a statistically relevant fact that men are not the sole perpetrators of DV or even the majority perpetrators. Even more alarming is that women initiate the physical violence at a rate that far exceeds men, almost 70% of the time. Women are also more likely to perpetrate violence against their children than men are. Note – men perpetrate violence against children more than women but when assessing violence parents initiate against their own children women are far more likely to be the perpetrators. Just one more fact – women are also much more likely to commit infanticide. These statistics are relevant and were compiled by agencies like the US Department of Justice and the CDC.
My personal thoughts regarding DV have evolved substantially over the past couple of years. I was the victim of false allegations and subsequent discrimination by our “justice” system. Fortunately I don’t have kids. I’m now committed to working diligently in raising public awareness and trying to affect positive change in the current discriminatory DV legislation. We need to restore credibility to the DV orders and the judicial system. The idea that a DVPO can be issued with absolutely no proof is outrageous. The idea that a DVPO can be issued based on metrics that are virtually unproveable (i.e. psychological abuse) is absurd. The process violates the very foundations of our legal system. There is no due process afforded to men accused of DV. There is no recognition that women are equally perpetrating DV. It really is insane.
If you’re interested I can forward additional information. I would greatly appreciate your engagement in this issue. It is important for everyone – men, women and children. I truly believe this issue far exceeds racial or religious tensions in this country. I’ve attached the cost analysis referenced above.
I look forward to discussing this further if you’re interested. In the meantime please visit this website as it has wealth of information regarding this issue:
He also directed me to an October 31, 2008 article from the Bluefield Daily Telegraph, titled, “MAWAD fighting stereotypes that only women are abused,” which also contained some surprising information – not only that some people and groups are fighting back, but some surprising statistics. According to the article:
Men and Women Against Discrimination (MAWAD) formed in West Virginia to expose the untruths behind the theory that men are always the aggressors, pursue a family court system that recognizes and honors each parent’s role in a child’s upbringing and to seek “truth, justice and equality in family law.”
Along the way, organizers say they discovered there are many men out there who are just as abused as any of their female counterparts, that the court system all too often ignores their wounds and that the very systems put in place to stop domestic violence can be manipulated and twisted into another form of abuse during divorce and custody negotiations.
That’s why MAWAD members have long argued that all custody proceedings should begin with a 50-50 shared parenting plan, which may then be crafted around the family’s individual needs and situations; that the domestic violence protective order process needs to be overhauled; and that people of any gender who file false domestic violence allegations should be penalized.
The article further described MAWAD’s goals:
MAWAD’s Region IV Director Ron Foster emphasized this week that the organization never condones physical violence or emotional abuse, but only wants every person, every parent, to face equal rights and responsibilities inside a fair family court.
“Our goal is to get the garbage out of the court so you can deal with true domestic violence cases,” Foster said Wednesday.
This is exactly right. Men are blatantly discriminated against in the custody process in West Virginia and elsewhere. There should be a presumptively 50-50 allocation from the outset. However, many times what happens is that the divorce or custody process begins with a 100-0 allocation due to the domestic violence protective order that is granted in many, many cases. This is aggravated by the fact that many lawyers feel they have a duty to suggest to their client that they take out a domestic violence petition, because it puts them into such an advantageous position. And if their client doesn’t take one out first, they other may, thereby putting them into an extremely disadvantageous position.
However, there is hope. And hope lies in appealing to circuit court. In one particularly egregious case that I had, the Family Court made a finding that a female significant other was “credible” in her profession that she was “in fear” of the male significant other due to a verbal argument and thereby entered a protective order, kicking the man out of his house, out of his job, away from his kids, and into the child support poorhouse. However, the Circuit Court overturned the order on appeal, finding that her fear must have been “reasonable,” and that no reasonable person should have been placed in fear due to the particular allegations. Its good to know that a circuit court judge is willing to abide by the law in the face of the family courts’ capitulation to women’s groups and institutionalized discrimination against men. My advice to others in these situations is to get a good lawyer, create a record in the family court showing the absurdity of the claim of “domestic violence,” and then appeal after the family court enters the order – which it always does.
I agree with MAWAD that it is an anti-domestic violence stance to call for reform of the domestic violence protective order procedures in West Virginia, because right now the procedures are being abused, thereby watering down the system, and allowing real domestic violence to take place.
Note: the reader also emailed me this report, titled “Analysis of Domestic Violence Costs in West Virginia and the Potential Cost of False or Unnecessary Claims,” by Benjamin Foster, Ph.D and Professor of Accountancy at the University of Louisville, which seem to be provide comprehensive coverage of the subject.
- John H. Bryan, West Virginia Attorney
Right to a fair [media account of your] trial?
Tulsa criminal defense attorney Glen R. Graham posted a lengthy run-down on “protecting the rights to a fair trial against unfair media stories in Oklahoma.” He cites the Code of Professional Journalism at the Society of Professional Journalists, and notes that the aforesaid “Code” advises journalists to: (1) seek truth and report it, (2) minimize harm, (3) act independently and (4) be accountable.
But the media can certainly do harm to criminal defendants by tainting the jury pool – not that they care.
Glen comments that a good criminal attorney must seek a protective order from the court in high-profile cases to prevent the prosecutor and staff, as well as law enforcement, from releasing harmful facts which either taint the jury pool, or taint the jury itself during a prolonged trial.
While trying a multi-week and high-profile jury trial, I found myself reading the papers and watching the local TV news everyday, always getting angry at their unfair portrayal of the days’ events of the trial. It was as if they were pandering to a tough-on-crime audience. My biggest problem with it was that I had a sinking feeling that the jurors were doing the same everyday. Obviously they were instructed not to read or watch any media accounts of the trial, but there was nothing stopping them from doing so. And I couldn’t in my own mind, believe that I wouldn’t do the same had I been a juror. There is some attraction to forbidden fruit, and none of us would actually believe that we could be tainted by any such media account of what happened – especially when we experienced it ourselves.
But, even when I read or heard the media accounts, the case sounded un-winnable. The defendant sounded obviously guilty – and a guilty verdict was all but assured. My wife was in the gallery watching the testimony everyday, and when she read the newspaper, she would also get angry, stating – “that’s not true,” or “yeah, but they took the quote out of context,” or “they left out the most important part.” The fact is, that such media accounts do not accurately portray what happened at trial. And even if you were there, by reading or hearing such accounts, it tends to sway the facts in your mind towards the prosecutions case.
In that case, when the verdict came back not guilty of 1st degree murder – but guilty of lesser included 2nd degree murder, the headlines only said “guilty of murder” with no mention of the acquittal of first degree murder – a partial exoneration from what the prosecution alleged happened, and which means the difference between life in prison and possible parole in ten years (in West Virginia).
But in reality, there is not much you can do about it but complain and hope for the best. A “gag” order may help some with pretrial disclosures tainting the jury pool (with respect to prosecutors and law enforcement leaking), and indeed the Caylee Anthony case in Florida emphasizes that possibility, but in most run-of-the-mill cases, most information is eventually “public knowledge” and thus accessible to reporters. And they don’t need prosecutors or law enforcement to assist them in shining the worst possible light onto the defendant.
– John H. Bryan, West Virginia Attorney
West Virginia Criminal Justice System Deserves Credit
I have complained before about law enforcement in Florida. There are ten cops for every one person it seems, and they spend most of their time extorting money from motorists. Well I have similar complaints about the criminal justice system in Florida, and any experience with it will cause you to want to bend over and kiss the ground in West Virginia (assuming you are in West Virginia).
Orange County, which is mostly Orlando, seems to be the worst. Imagine that you are charged with a crime in Orange County, Florida. You can’t afford to hire Jose Baez, and you have no publicity to offer him, so you are appointed a public defender. A family member bails you out of jail. You wait and wait, but you never hear from your attorney. So you try and call him or her. You call the Orange County PD’s Office. You get a recording. It thanks you for calling and automatically puts you on hold. Every few minutes a digitized voice tells you how much longer your wait time is. After about 20 minutes of waiting, you get a “customer service representative” who is extremely unhelpful and rather rude. You may find out who your appointed PD is, but you never actually get to speak with him or her.
So you then decide to call the judge’s office to find out some information. But alas, you can’t find the judge’s contact info anywhere – only his bio. So you call the Clerk’s office to try and find the number to the judge’s office. But again, you are put on automatic hold. When you finally get an operator, she listens to you, says “uhhh, hold on,” and redirects you back to the beginning of the phone system as if just to put you off on another operator.
When you finally get a live voice that is willing to give you the number to the judge’s office, you call the judge’s office, and guess what? Yep, another recording. There actually is no live receptionist, just a long recording warning you that “this is a very busy office.”
While all of this is going on, your case meanwhile is charging ahead through Orange County’s automated criminal justice judiciary. You can actually plug in your info and watch your case proceed in real time – you just can’t ask anyone about it, or stop it. What if the system makes a mistake? Who can you tell? You have no access to an attorney. You can’t call the judge. You can’t speak to anyone with any sense at the Clerk’s office. Even the prosecutor won’t speak with you if your not the PD defending the person.
Contrast this with West Virginia. Indigent criminal defendants actually receive great service in rural West Virginia counties. In most counties a private attorney is appointed for the person. These private attorneys have telephone numbers, fax numbers, and usually email addresses. You can call the person, ask questions, set up a live meeting. Or, you could call the judge’s office and speak with the judge’s secretary about the status of your case or even to ask which attorney was appointed to represent you. You could call the circuit clerk’s office and speak with a very helpful person who can answer most questions about your case. Even in the few metropolitan areas of West Virginia the service is much, much better. You can get actual contact information for the public defenders, as well as the prosecutors. And attorneys, whether appointed or public defenders, actually represent you and have ethical obligations to diligently defend your case.
Maybe they would argue that they can’t help it because there are just so many people in the system. And I’m sure the same differences exist with respect to our civil justice system as compared to Florida. But whatever the reason, it makes me glad to both live and practice law in West Virginia.
– John H. Bryan, West Virginia Attorney
Less can be more at trial
The Wall Street Journal had an article this morning entitled “Lawyers will be lawyers, dumping more on juries than they can process.” The premise of the article basically was that giving a jury too much evidence works against you.
It’s an occupational hazard: Lawyers, being lawyers, are loath to leave out a single stone of the fortress of evidence they are building, lest it prove to have been the keystone. Prosecutors are tempted to anticipate and counter every argument the defense might make. They sometimes forget that they are also storytellers, who by trade rely on judicious selection — and omission.
The article relates this mostly to white collar cases, but I think it can apply in any type of case. If you bore the jury to death, your less likely to win. And as a defense tactic, sometimes the only thing you can do when you are facing overwhelming evidence is to muddy the waters. If the state calls too many witnesses, it could dilute their message. For instance, in a murder trial, by the time the state gets done calling its dugout of witnesses, the defense hopefully will have muddied the waters enough that the jurors missed any clear message from the prosecution and really don’t remember everything that was said.
– John H. Bryan, West Virginia Attorney
No big surprises in legal-related election results in Greenbrier County
Judge Joseph C. Pomponio, Jr. retained his bench on the 11th Circuit for Division 1. He has a great quality for a judge – being extremely humble and down to earth. He prevailed in a campaign against a very prominent and well-liked candidate. Overall, both candidates ran a very respectful campaign.
Judge Jim Rowe also retained his bench on the 11th Circuit for Division 2. Judge Rowe has been a very popular judge in Greenbrier and Pocahontas counties. In my experience Judge Rowe has been a fair, impartial, and knowledgeable trial judge, which is the heart of the job. His opponent, a friend and mentor to me, ran a passionate and high-profile campaign, coming closer than anyone thought possible, and deserves credit. It takes a lot of guts to put yourself out there and run for office. A lot of people are willing to complain, but very few are willing to put their money (and their name) where their mouth is.
Patrick Via, a Republican, won the race for Prosecuting Attorney against Democrat challenger Martha Fleshman. Pat is experienced, honest, and ethical, and will be a great prosecuting attorney for Greenbrier County – though I’m not sure if that is a good thing for defense attorneys….
- John H. Bryan, West Virginia Attorney
Big surprise: felony case against Raleigh County deputy dismissed
As reported in the Register-Herald this morning, a felony charge against Raleigh County deputy Randy Burgess was dismissed during his Monday preliminary hearing. He was charged with writing a worthless check for “multiple thousands” of dollars.
No big surprise here. Several things to note: (1) A special prosecutor was appointed. That should tell you something. The prosecutors office will not even prosecute a local member of law enforcement. They may say this is a standard conflict, but it shouldn’t be. (2) The charge was dismissed at the preliminary hearing at the request of the special prosecutor after “discussions with the sheriff’s department led him to believe the state ‘didn’t have a case.”
Yeah right. First off, why would the sheriff’s department be investigating one of their own? Shouldn’t the state police be conducting this investigation? Why would you rely on this as a “special” prosecutor? And how could you possibly not have a case in a worthless check case? These are the most open and shut cases that could ever exist. The check was written, the guy signed it, and the bank has all the records. What else do you need?
They should at least be honest. They dismissed the charges because he is a cop. It’s that simple. In the case where Joe Blow is charged under the same circumstances, do you think a prosecutor would speak with the sheriff’s department, and come to a conclusion that there “is no case,” and just request dismissal of the charges? Hell no. Even if the prosecutor thought that, he would offer a plea to a misdemeanor.
Someone should tell “special” prosecutor Tim Boggess from Mercer County that he represents the citizens of West Virginia, not the cops, and the citizens have a right to know why he requested dismissal of the charges. Why for the first time in history was there “no case” in a worthless check case? Has this been explained to the victim? Or is there no such thing as a victim when the perpetrator is a cop?
Once again, I’m a lone voice shouting in the wind that there is a double standard at play here. And the problem is the prosecutors – with the “special” prosecutors being the worst of all, because they are not accountable to the elected public. Do you see a trend here? Cop breaks law; elected prosecutor withdraws and requests special prosecutor; special prosecutor either dismisses charge or gives sweetheart deal; elected prosecutor walks away clean.
– John H. Bryan, West Virginia Attorney.
West Virginia ABCA Investigated by Feds
Its being reported in the Charleston Gazette this morning, as well as the Register-Herald, that the feds are investigating West Virginia’s liquor control agency, the Alcohol Beverage Control Administration, and subpoenas are flying.
The Register-Herald article was not able to confirm any of the details, but the Gazette article, by Phil Kabler, was actually very specific. From the article:
Here’s what I’ve been able to gather: Apparently, the investigation by the U.S. Attorney’s Office in Charleston goes right to the top, and is focused on five individuals: Commissioner Dallas Staples, former Charleston police chief; deputy commissioner Keith Wagner, a former state senator from McDowell County; region 2 enforcement director John Duncan; Danny Cantley; and Fred Wooton, who also works full-time as a Beckley firefighter. He’s also the brother of former state senator and current House of Delegates candidate Bill Wooton.
The article followed the above paragraph with this one:
Duncan was one of the ABCA officials reprimanded in 2007 for transporting liquor in an ABCA vehicle to former Lincoln County clerk Greg Stowers’ homecoming party following his release from federal prison.
Goodness gracious. Add this to the “only in West Virginia” stack of stuff….
Apparently, the allegations revolve around gifts from alcohol distributors to state ABC officials for favorable positioning and promotion of their brands. What kinds of gifts? Everything from bottles of liquor to thoroughbred horses, to dinners, golf outings, etc.
Power corrupts, and absolute power corrupts absolutely. The WV ABCA was given complete control over the granting of liquor licenses, and liquor licenses are a prerequisite the the award of a video lottery license. Was there any doubt that this would lead to a corrupt state agency?
There was a comment posted on the Gazette article by “Joe6pk” that was particularly insightful:
Long ago, the State decided it wanted a monopoly on the sale of alcoholic beverages, and to exercise that monopoly through distributors. It was a set-up for corruption that has continued for 70 years or more. The only way to end this corruption is to get the State out of the alcoholic beverage business. Thirty-two other states have done so, with no ill effect. Alcoholic beverages should be treated as any other consumer product. A monopoly limits selection, increases prices and reduces tax revenue. It may have been a good idea in 1933, but times have changed and it has become a stupid idea that benefits only the distributors and corrupt officials. Blah!
Criminal defense attorneys have known for a while that ABC has been using their power over liquor licenses and lottery licenses to investigate licensees charged with crimes unrelated to the licenses. Say a liquor licensee is charged with an unrelated crime. They will suspend his license, and then demand that he give a full and complete written explanation of what happened. Then they will hand the statement over to prosecutors. Why were they doing this? Who knows. Maybe they just got power hungry.
- John H. Bryan, West Virginia Attorney.
Tired of domestic violence petitions…
That’s it, I’ve had it. For too long domestic violence protective orders have been abused in West Virginia. The first one to the magistrate court wins, and wins big. They get the house, the kids, the money, the property, etc., for at least 180 days – usually for good since the divorce usually follows.
999 times out of a 1000 these cases are bogus. Everyone, the lawyers, the judges, the cops, know what is going on. They know the system is being abused, yet for some reason the judges refuse to deny these things. The law says that “domestic violence” must be proven by a preponderance of the evidence before they can be granted. Yet, they are routinely granted in every single case – at least where women are the petitioners. All they have to say is that she was “placed in reasonable apprehension of physical harm.” That’s not domestic violence, that’s a scam. One of the only ones I’ve ever seen denied is where the petition was filed against a cop. In that case, since the cop couldn’t work if it was granted, the judge went out of his way to analyze the facts and generously apply the law. But not for you Mr. Joe Blow, your screwed. You have no rights. Your lucky you’ll even get to see your children for the weekend two weeks from now. And don’t even think about complaining or else those visits will be supervised. What did you do wrong? Your a man.
But I have seen one issued against a woman by a man who was allegedly the “victim” of domestic violence. And the man was a police officer. And what benefit did he receive? The house, the kids, the personal property. He knew how to abuse the system. What a crock….
- John H. Bryan, West Virginia Attorney
Practical Advice for Anyone Accused of a Crime
Glen R. Graham, of the Oklahoma Criminal Defense blog, recently posted the “Practical Advice for Anyone Accused of a Crime.” Most aspects of the advice also ring true in West Virginia. For instance:
I would tell you to keep your mouth shut and not to discuss your case with anyone because they can become a witness against you — even involuntarily — if the prosecutor subpoena’s them to testify. Do not bring your family into my office to discuss the facts of your case in their presence because they may become subject to an involuntary subpoena by the prosecutor at a later time.
This reminds me of the first time I learned a big lesson that probably every criminal defense attorney learns at some point. The client as charged with fraud in a fairly high profile case, and I bought into the client’s story hook line and sinker. Based on the assumption of the correctness of the client’s version of the facts, I advised the client not to take the initial plea offer, which was pretty good. But the plea offer was only good up and until the case went to the grand jury. We didn’t take it. But at the grand jury, several close family members ended up being subpoenaed, and guess what? Apparently the client had confessed to each of them privately, and I had no idea. The family members, facing prosecution for perjury, were forced to reveal the confessions to the grand jury. He was indicted on their testimony, and ultimately forced to take a less generous plea deal.
What was the lesson? When it comes to considering plea deals, you have to assume that your client is guilty and that he or she is lying to you, because you don’t always know it when they are, and the one time you do, you’ll get burned. And secondly, clients need to keep their mouth shut around their family members – even their spouses in some instances – because an aggressive prosecutor can subpoena all of them before the grand jury, scare the living daylights out of them, and force them to reveal what you told them.
- John H. Bryan, West Virginia Attorney
Menis Ketchum a good choice for West Virginia Supreme Court
I usually don’t get involved in politics, but since I fight every day to protect people’s rights and defend the constitution, I consider this post my duty as a constitutional defender and champion of the little guy. There was an article in the Register-Herald yesterday, entitled, “Ketchum pledges one term, to bring experience to court,” that I suggest anyone looking for more information about West Virginia’s Supreme Court race read.
Ever since the 2004 election, the West Virginia Supreme Court races have become overly politicized, which begs the question: why should they be political races in the first place? Are elections the best way to achieve justice and seat the most qualified Justices? I argue that they are not.
In the article, Ketchum is quoted as saying:
“I just received an e-mail with an article from the New York Times that just blasted our court,” Ketchum told The Register-Herald editorial board. “It’s talking about the U.S. Supreme Court is going to try and fix the corrupt West Virginia Supreme Court.”
Not only that, but now there is even a John Grisham book that openly mocks our Supreme Court elections in West Virginia. It needs to change. Ketchum continued:
“They must insulate themselves,” he said. “You go to work, you do your job and you stay out of the limelight. That has to be done to get the appearance back that our court is judicial.”
Ketchum believes an independent commission made up of regular citizens should make the decision if a Supreme Court justice should be recused from a case.
“I think it’s too much on the justices to ask them to recuse themselves from cases,” he said. “I do not think it can be circuit judges put on a commission because they work for the Supreme Court.”
This is exactly what we need. Reform of our judicial process, but not a reform that takes rights away from people and gives more rights to insurance companies and big business. We need reforms that give more justice, not reforms that take it away.
And for these ideas, Menis Ketchum has been viciously attacked. He has been attacked by his opponents, by sitting Supreme Court Justices, and by big business and the insurance companies. And why have they been attacking him? Because he dared to represent plaintiffs in their fights for justice. These are the types of cases they consider “frivolous” lawsuits. Cases such as these: where a hard-working steelworker or coal-miner, who works hard every day to support his family, is injured by a reckless driver through no fault of his own, and as a result, is left with no income, mounting medical bills, and looming bankruptcy; or where an 82 year old grandmother is denied a necessary operation due to a technicality in an insurance companies’ fine print. I see these cases everyday, and I feel for these people. I am proud to fight for them against emotionless and greedy insurance companies who want nothing more than to deny them coverage and leave them helpless. Of course, not all corporations are heartless, but many are, and all insurance companies are.
Since when is it a bad thing to represent living breathing people with real problems? People suffer. Since when is it a good thing to represent a corporation or insurance company who is concerned only with the bottom line? Any insurance company would wrongfully deny coverage in each and every case if they thought they could get away with it. They have legions of lawyers working hard every day to get them as close to this goal as they can get. Is that who you want on the Supreme Court? Someone who has an agenda aimed at insulating business from those pesky little people who work for them, with them and around them? Not I. I want judges and justices who will give fair and equal access to everybody, rather than ones who get elected on the platform of denying rights to individuals in order to promote a “better business climate.”
Lastly, Menis Ketchum has the greatest qualification for West Virginia’s highest court: experience. Real experience: trying jury trials. He has more jury trial experience than all the other candidates combined. You can’t decide cases unless you’ve been there before, and you can rest assured that Menis Ketchum has been there.
This is not a partisan argument (I am a conservative NRA member and the son of one of the most ardent tort reformers around), and this is not an argument against any of the other candidates. In fact two need to be elected. I just think that Ketchum is the most qualified, and that the attacks on him are ludicrous. I just believe in equal access to justice. Justice not just for the big companies, insurance companies, and large law firms. But justice for the little guy – and those pesky little lawyers who represent them.
And, most importantly, any judge or justice should have experience representing criminal defendants. Period.
- John H. Bryan
Kanawha County Sexual Abuse Case Dismissed
As reported in the Charleston Daily Mail this morning, Kanawha County Circuit Court Judge Irene Berger dismissed a case against a former Chesapeake youth pastor accused of sexually abusing a 16 year old girl.
The article reports that the defendant, Timothy C. Edmonds, was scheduled to go to trial this Monday. But Judge Berger ruled that the state had taken too long to bring an indictment against Edmonds, and dismissed the case. Assistant Prosecutor Michelle Drummond said the state would present charges again to a grand jury to get a superseding indictment.
In West Virginia, criminal cases can be dismissed due to pre-indictment delay, however, they are only dismissed “without prejudice,” which means that the case can go back before a grand jury. But, after an indictment is returned by a grand jury, the case must go to trial within one year of the indictment (i.e., the “three term rule”), or even within the first few months (i.e., in the same term of court) if the defendant invokes his or her right to a “speedy trial” (i.e., “the one term rule”). Dismissal on these grounds is more like a criminal statute of limitations, and is “with prejudice” and therefore permanent.
It seems most likely here that the dismissal was due to pre-indictment delay, though there must have been an indictment returned some time ago since the trial date was this-coming Monday. Apparently the guy was first arrested and charged via “Criminal Complaint” over 2 years ago. And what was happening in the meantime? There were civil cases filed, litigated and settled, involving a “large sum of money,” according to defense attorney John Sullivan.
If this guy is “guilty as sin” as the victim’s mother is vocally announcing to the newspapers, and if the state has overwhelming evidence against him, as they are suggesting they have, then why wait 2 years to bring him to trial? Is it proper for the Prosecuting Attorney to file criminal charges, then delay the case for the victim’s civil lawsuits, before finally bringing a criminal trial on the charges? I don’t think so, and apparently Judge Berger didn’t either. If your going to prosecute someone, then prosecute them. The prosecutor should not be coordinating the criminal case with the victim’s civil lawsuits.
- John H. Bryan, West Virginia Attorney
Candidate for Cabell County Magistrate Arrested – displays troubling trend in WV’s lowest court
The Herald-Dispatch is reporting this morning that Amy Walker Daughtery, a Cabell County candidate for Magistrate – who is a Democrat and the lead vote-getter – was arrested on Tuesday for “broker[ing] a $20 crack cocaine deal, admitt[ing] to five similar transactions and tr[ying] to bribe a Huntington police officer.”
What is going on with these Magistrates and candidates for Magistrate across West Virginia? I have posted on prior cases that just blow your mind There are some prior cases (also this one) which I have not posted on which will also blow your mind. Had these arrests not taken place, and had I or someone else made the allegation that this type of behavior was going on, nobody would believe it. People would dismiss it as a conspiracy theory.
It’s just beyond the pale. According to the Herald-Dispatch, she requested the drugs via telephone, and then arrived at the set location – a Rite Aid parking lot – where she met an undercover state trooper who gave her .4 grams of crack cocaine in exchange for $20. Then, as she was being booked in the very magistrate court office where she was hoping to sit in judgment of others, she attempted to bribe the Huntington police officer who was booking her. Reportedly, she said she would give him money “if he would release her from custody at that time and location.”
Daughtery was charged with felony bribery and six counts of possessing with an intent to deliver crack cocaine. Then, she was arraigned by her opponent in the magistrate court race – Magistrate Mike Woelfel. I bet he is counting his lucky stars this morning. According to the article:
Before the May primary election, Daugherty told The Herald-Dispatch she believed common sense was the most valuable asset for a candidate to possess, and said she would learn enough about the law as she heard each case.
During the primary, Daugherty led the way in the 18-candidate race all evening. She captured 7,041 votes, or 9.43 percent of the vote. She promised to bring integrity as well as common sense to the office if elected in November.
“Am I happy? I don’t know if that is the word,” she said the night of the May primary. “I’m shocked. I’m numb. We need new blood down there and we know that. Everybody knows that. I’m ready to build up the faith and confidence back into the magistrate system.”
Wow, the people of Cabell County should also be counting their lucky stars.
The article also reported that investigators questioned Daugherty for nearly two hours at the Huntington Police Department. Obviously not much common sense there. She should have read my post from a couple of days ago about keeping your mouth shut.
Apparently she received an endorsement from the union of the Huntington Police Department. Nonetheless, they investigated her and took her down. Bravo to the West Virginia State Police, as well as the Huntington Police Department’s Drug and Vice unit and Violent Crime Drug Task Force for maintaining integrity our lowest wrung of the West Virginia judicial system – I wish other agencies across West Virginia would be open to doing the same.
- John H. Bryan, West Virginia Attorney
100K in West Virginia Taxpayer Money Granted to “Curb Smoking Among Gays”
Okay, this doesn’t have much to do with criminal law, except that the state owes criminal defense attorneys across the state a lot of money that they supposedly cannot pay without a long, long wait. But on the other hand, what’s a 100K here or a 100K there for artistic renderings of gay cigarettes?
Note: this commentary has nothing to do with sexual preference, so please don’t bother to write me angry emails. It has everything to do with government waste and incompetence. I am against any taxpayer money being spent uselessly – be it towards straight or gay causes, or any cause for that matter that government has no business being in.
There is so much wrong with this that I don’t know where to start. According an article in the Charleston Gazette today, the state Division of Tobacco Prevention has distributed $100,000 in grants to “Covenant House” and Bluefield State College to “curb smoking in the gay community.”
Apparently this is a problem worthy of your hard earned money being taken from you essentially at gun point, and given to “artists”, who apparently cannot survive in the free market, to create this:
Who else will really be getting the money? Advertisers, and of course those “artists” who I’m sure will be creating the ads, to convince gay people that they should not be smoking. Is this really necessary? Are they going to take a look at the above piece of “art” and all of a suddenly throw away their cigarettes and jump on a treadmill?
So why attempt to curb smoking only among gays? According to the article:
Tobacco prevention and gay health groups say gay people smoke at high rates because of stress caused by discrimination. Gays also are more likely to frequent places where smoking is prevalent, such as bars and private clubs.
What’s more, gay people have higher rates of alcohol and drug abuse, behaviors often associated with smoking, according to gay health organizations.
“The tobacco industry has targeted the gay population for years,” Crist said.
So let me get this straight…. We have bridges that need repair in West Virginia, highways that are falling apart, and it takes the state about a year to pay it’s court appointed attorneys. Heck, we can’t even afford 5 day workweeks anymore. But, we can afford a useless make-work campaign designed to curb smoking among gays?
Our state government is officially insane. Remember this the next time that you hear about West Virginia’s population declining. This is why you pay an inordinate amount of taxes in this state. You are worried about how you are going to pay for your heating oil this winter, or about whether you can continue to operate the family farm or business. But your elected and appointed government leaders are worried about pandering to anyone and everyone with an agenda – and they could care less because (a) they get more votes, and (b) it’s not their money.
If you look through the comments following the Gazette article, its clear what the proffered counter-argument is here: that this is a health crisis issue in the gay community and you are “homophobic” if you don’t agree to spend money on it, and that if our government does spend money on it, then it will save us money in the long-run in heath care savings. If the gay community recognizes this as such a health care crisis among their group, why don’t they just stop smoking?
And if anyone really believes that a taxpayer funded cartoon pack of pink cigarettes and the like will really stop one single person, whether straight or gay, from smoking, then I’ve got a bridge in the New River Gorge that I would like to sell you. It’s really nice.
– John H. Bryan, West Virginia Attorney
Beware of the Developers in the Greenbrier Valley
For years now I have been seeing outright lies in the advertisements and on the websites of some of these “homesite communities” in the Greenbrier Valley (i.e., Greenbrier County and Monroe County, West Virginia). I was reading through the latest issue of the State Journal this morning, and saw an advertisement for a “premiere homesite community” in southern Greenbrier County, and I immediately rolled my eyes and wondered if these developers actually get away with this stuff.
At the top of the advertisement is says “sophisticated.” I drive by this place all the time, and I am left wondering what is so sophisticated about this development. The roads are not even paved. It’s just a big hilly, rocky, field, and there is not one house built there that I can see. They have a couple of pictures on the ad – one is of a “sophisticated-looking” yuppie-type couple holding glasses of wine and smiling at each other. Is this the same couple featured in all developer’s ads? I think I have seen the same couple on billboards for matchbox developments all across the eastern seabord. Another photo shows a guy playing golf on a course that is obviously nowhere near this development. There is not a golf course with terrain that flat within 100 miles of there, and there obviously is no golf course on that property. But just looking at this ad, you would think there is a golf course. That would be sophisticated, right?
Lastly, there is a photo of a beautiful [huge] rustic home. In reality, however, this home is probably nowhere near this development, but most likely is just a stock photo from the builder who has contracted to be the exclusive builder for the property. It’s possible it could be there, but I don’t think so. You sure can’t see anything from the road, and there doesn’t yet appear to be any construction whatsoever in the development except for the entrance and the gravel roads.
Looking at the ad, you get the impression that you would be joining some exclusive club with a great neighborhood and amenities if you buy property in this development. In reality, it is just a big empty space with gravel and dirt roads. Only a year or two ago it was cattle pasture – and full of rather non-sophisticated “cow patties.” You could walk around out there all day long, and you wouldn’t see any yuppies playing golf or drinking wine. You wouldn’t see any beautiful rustic vacation homes.
And yes, there is more. The ad says at the bottom that the “premiere . . . homesite community” is “nestled between Lewisburg and Ronceverte in Greenbrier County, West Virginia.” That ladies and gentlemen, is an outright lie. The development is far on the other side of Ronceverte, almost to the Monroe County line. It is not between Ronceverte and Lewisburg. In other words, if you were to fly from the development towards Ronceverte, as the crow flies, you would pass over Ronceverte, and then you would pass over Fairlea – where the State Fair of West Virginia is held – and then you would finally come to Lewisburg. Thus, it absolutely is not “nestled” between the two. In my estimation, it is at least a 15 minute drive from there to Lewisburg. Why would they lie about this?
Local developers are notorious for lying about their proximity to Lewisburg, because Lewisburg is the town with all the shops, restaurants and the amenities. They want you to think that this development is practically right in Lewisburg, when in truth it is not.
I know the housing market is in the pits right now, but even when it was doing great, these guys were doing the same sorts of things. The funny thing is, that despite all of this false and misleading advertising, if you actually take a look at any of these places, you will see maybe one or two houses in the entire development, if any – and that goes for about all of them, with the exception of the Greenbrier Sporting Club.
Hopefully people are doing their homework before they make any deals with these places. If the advertisements are lies and misrepresentations, you can only wonder about what they tell you when you meet them in person. Buyer beware….
– John H. Bryan, West Virginia Attorney.
WV Gubernatorial Candidate Fights Medicaid Abuse
I will start off by saying that I’m not endorsing any particular gubernatorial candidate here, but it was interesting to find an article in the Register-Herald this morning about Republican gubernatorial candidate Russ Weeks, who is on a crusade to bring accountability to Medicaid expenditures.
Let me tell you the biggest problem I see with Medicaid, especially in West Virginia. Since people who actually create jobs and support small-town economies (i.e., self employed or run their own business) cannot actually afford [good] health insurance, they actually care what medical services cost them when they are needed.
Say your sister needs to get an MRI or a CT-scan. She goes to the local facility/hospital that has the equipment. The scan takes about 5 minutes. They charge her upwards of $2,000.00. She later finds out that the fair market value of that scan is about $300.00. She complains, but she is told by the hospital that they just use the price as set by Medicaid. In other words, that is what Medicaid pays, so that must be the value of the procedure. The end result is that she is royally ripped off by the hospital. But this also means that the taxpayers are royally ripped off every single day when Medicaid pays inflated prices for medical procedures – prices that would never survive in a free market.
I see this all the time with clients who have been injured in car accidents. They incur a massive debt of medical bills, and they are out of work for a long period of time. Their life is barreling towards bankruptcy. Usually the insurance companies will only cover about $10,000.00 worth of initial medical bills. Then the hospital and doctors want to be paid. Sometimes they are willing to wait for a settlement, sometimes they are not. Between the greedy insurance companies, the greedy hospitals, and the sometimes-indifferent doctors, these poor folks can be backed into a corner. And many times, the true value of the medical services rendered is 1/8 of the debt that is accumulated.
The point is, that there has got to be a better way. And I would start with cleaning up this Medicaid mess, which is nothing but a government-sponsered ponzi scheme designed to enrich hospitals and health care companies at our expense.
– John H. Bryan, West Virginia Attorney.
West Virginia Legal Aid CLE
This morning I attended a West Virginia Legal Aid CLE (continuing legal education), which was absolutely free. Only those of us lawyers who actually have to pay for our own CLE’s could care whether or not a CLE is free.
The first speaker was a Family Court judge out of Charleston, and he gave an interesting presentation on several recent developments in West Virginia family law. One interesting case he talked about was a divorce case where the husband absolutely refused to pay as required under the Family Court Judge’s order. So the Family Court Judge threw him in jail. The other lawyer in the case, went and talked, ex parte (without the other side present) to the Circuit Court Judge, and the Circuit Court Judge issued an order sua sponte (at its own initiative) staying the Family Court’s order incarcerating the guy. As it turns out, this was not a legit legal move. So the West Virginia Supreme Court clarified some things, and gave Family Court judges some teeth in their abilities to impose sanctions, including incarceration, on parties in contempt of their orders. So this judge’s message was that attorneys practicing in Family Court matters better be careful from here out, lest they find themselves at the wrong end of the gavel.
Another speaker was a Federal Magistrate Court Judge from the Southern District of West Virginia, who gave an interesting talk on different types of federal cases that frequent the District. The one thing that popped out at me, and that I was completely unaware of, was the degree to which the federal judiciary goes out of their way to assist federal prisoners in their pro se (without a lawyer) cases before the federal courts. The Judge explained that they do everything in their power to help these prisoners find an attorney to represent them, but that if they are unable, they go over their cases with a fine-toothed comb and construe them “liberally.” It’s nice to know that some parts of the judicial system actually work, and that federal judges actually care about those at the lowest wrung of our society. It’s admirable.
Thanks to WV Legal Aid. It’s hard to beat a free CLE and a free lunch.
– John H. Bryan, West Virginia Attorney
ATF is the poster-child of bureaucratic incompetence
As reported by Fox News today, according to an audit, 76 ATF weapons and 418 laptops were lost, stolen or missing over the last 5 years. This rate of loss for weapons is nearly double that of the FBI and DEA. Furthermore, the ATF didn’t even know whether most of its lost, stolen or missing laptops contained sensitive or classified information.
What more can one say? This is government incompetence at it’s best. They tell you what to do with your guns, but they don’t even keep track of what they do with theirs. Then, they set up sting operations to entrap law-abiding citizens into violating one of the hundreds of complex firearm laws that the ATF supposedly “enforces.”
Who’s great idea was it anyways to let a bunch of yahoos with “Special Agent” status regulate our alcohol, tobacco and firearms? Back in the days of our founding fathers, access to these things was part of being American. They were a part of life. Now, the almighty federal government gives you the privilege of having these things, as long as you follow their rules.
– John H. Bryan, West Virginia Attorney.
7 Years Later…
AP – September 11: U.S. Army soldiers salute three American flags, representing the three sites of the September 11 terrorist attacks on the United States, at a ceremony to mark the seventh anniversary at Camp Liberty in Baghdad.
Corporate Indifference in West Virginia
The Charleston Gazette ran a story on September 5 about the Bayer plant explosion, which made national news last week. Reportedly, when plant employees called 911, they refused to give the dispatchers details. Upon numerous requests for information, they repeatedly responded that “I’m only allowed to tell you that we have an emergency in the plant.”
The end result was that one worker was killed and a second seriously injured. Citizens living in the area were told to take shelter because of potentially deadly fumes. Furthermore, Bayer refused to report the incident to the National Response Center, which is the clearinghouse for reporting hazardous-materials accidents to the government, until more than two hours after the explosion.
The Charleston Gazette reported on a citizen’s phone call to the NRC:
At 11:15 p.m., Institute native Catherine Davis called the NRC after hearing about the explosion from her mother, who still lives in Institute.
“This happens all the time,” said Davis, who now lives in Arizona. “They never tell anyone.
“We’d go outside, and some crazy flames would be shooting up or we’d smell something and we’d call the plant and they’d say that nothing happened,” Davis said. “But then, three hours later, you hear the emergency broadcast.”
Note that this phone call to the NRC, from a lady who actually lives in Arizona, took place well before Bayer reported the explosion to the NRC. Oh, by the way. Bayer was required by federal law to “immediately” notify the NRC.
Why the spin? Were they buying time to cover their tracks? To destroy the evidence? Or were they just being arrogant and nonchalant?
What possible justification is there for not releasing full information to first-responders and state authorities. What justification is there for not alerting local residents as to what kind of chemicals are raining over their homes? What justification is there that the first report to federal authorities comes from a woman living in Arizona? It seems that the reason many of these plants are in West Virginia has to do with the seeming expendability of it’s citizenry, and the indifference of its state government to do anything about it. There needs to be accountability behind the corporate veil. Accidents happen, but if you cause a dangerous accident, you need to be open and honest with the community and with all authorities, rather than just protecting the corporation.
On September 6, the Gazette ran another story reporting that the EPA is going to investigate Bayer’s reporting delay. It noted the following about the 1986 federal law mandating immediate disclosure:
Under the 1986 law, chemical companies are required to “immediately” notify state, local and federal authorities of releases of certain amounts of certain toxic materials.
The notification must include the chemical name, an estimate of the quantity released and the time and duration of the release. Companies must also include information on any known or anticipated health risks associated with the release and advice regarding medical attention for people who are exposed. Also, companies are required to provide information on the proper precautions, such as evacuation or sheltering in place, and the name and telephone number of a contact person.
Violations can draw civil penalties of up to $25,000 a day, and willful and knowing violations can draw criminal penalties of up to $25,000 a day and up to two years in jail.
Cases like this make me proud to be an attorney who represents “breathers,” actual living, breathing human beings, rather than legal fictions that can act recklessly and irresponsibly all-the-while avoiding any personal responsibility on any one individual for making those decisions.
Maybe West Virginia should unleash it’s army of plaintiff’s attorneys onto Bayer…
– John H. Bryan, West Virginia Attorney.
West Virginia Among The Most Medicated of States
There was an article in the August 29 issue of the State Journal highlighting the fact that West Virginia is among the most medicated of states – meaning that the prescription drugs per capita of its’ citizens is off the charts.
I posted about a related issue back on July 30, titled West Virginia Doctors in Bed with Pharmaceutical Firms, commenting on the fact that a number of West Virginia doctors are getting paid under the table by drug companies to prescribe patients certain expensive drugs, and that to top it off, those doctors names are being secretly withheld from public disclosure.
According to the State Journal article, the number 1 prescription filled in West Virginia is Hydrocodone, which is an addictive opiate. In case you didn’t know, West Virginia has a little problem with pill junkies and the doctors who make a nice living supplying them. Most of these prescriptions are most likely funded by us, the taxpayers, while we are also forced to bear the burden of these pill-junkies committing crimes so they can buy black-market pills once their prescription runs out.
And then there is the issue of the over-medication of children, especially in West Virginia. Any lawyer who has dealt with juveniles in abuse and neglect cases is well aware of the fact that any time a child shows any type of negative behavior, they are inundated with prescription drugs – not just by parents and doctors, but by the State. And the drugs solve the problem exactly 0% of the time.
How do we solve this problem? We let the sunshine in. We expose the doctors who are in bed with the pharmaceutical firms, and the bad doctors who abuse their hippocratic oath. We rein in pharmaceutical advertising. And for God’s sake, we stop using taxpayer money to buy drugs for people.
– John H. Bryan, West Virginia Attorney.
Coincidence in the morning paper…
This morning I took a look at the Register-Herald newspaper because I knew there would be an article about a lawsuit that I filed recently. It was published, and can be found here. But I was also surprised to see an article about my youngest brother, Beau, in the same section. This is the same brother that got one of my other brothers – Trey (who’s artwork you should take a look at here) – past the secret service and in to meet Bill Clinton a few months ago.
- John H. Bryan, West Virginia Attorney.
Insurer (AIG) Denies Life Insurance Claim for WV Iraq Vet
There was a story in the Charleston Gazette today about an insurance company, AIG, who denied the life insurance claim of an Iraq vet’s family, and in return the family sued. If you didn’t already know that insurance companies are the dregs of corporate society, well now you know. This poor family has lost two sons, both of whom served in Iraq. Life insurance is supposed to be automatic. The vet took out the policy himself, naming his parents as beneficiaries so that they wouldn’t be burdened with expenses like when their other son was killed in Iraq. This hero paid over 14 months worth of premiums, and his claim was denied because they didn’t know about a car accident that happened when he was 16 years old.
“[AIG] said that had they known that Andrew White had a car accident when he was 16 years old, they never would have written the policy to begin with,” said Charleston attorney Jack Tinney, who represents the White family. “That’s ludicrous.
“They have gone back and searched for any reason whatsoever to deny the claim, rather than look for a valid reason,” Tinney said.
Amen – and good luck to this family. I hope they stick it to AIG and make them eat their greedy decision to deny this poor family what they are rightfully owed. There has been a lot of talk about the terrible “business climate” in West Virginia. Most times, this is what “business climate” is. Insurance companies lobbying for a better “climate” in which to plunder the hard-earned savings of West Virginians. How easy do we want to make it for insurance companies to rip off our citizens? Do we really want to make it difficult for folks such as this family to seek civil justice?
– John H. Bryan, West Virginia Attorney.
And You Want the Government To Manage Your Healthcare?
Its practically common-knowledge that most government bureaucrats and their red-tape agencies would not be able to hack it in the private market. When profit is no longer an incentive, complacency, arrogance, and ineptitude (i.e., bureaucrats and politicians) move-in. This is an actual letter sent to a man in Pennsylvania, by the Pennsylvania Department of Environmental Quality, as well as his actual response.
SUBJECT: DEQ File No.97-59-0023; T11N; R10W, Sec. 20; Lycoming County
Dear Mr. DeVries:
It has come to the attention of the Department of Environmental Quality that there has been recent unauthorized activity on the above referenced parcel of property. You have been certified as the legal landowner and/or contractor who did the following unauthorized activity:
Construction and maintenance of two wood debris dams across the outlet stream of Spring Pond.
A permit must be issued prior to the start of this type of activity. A review of the Department’s files shows that no permits have been issued. Therefore, the Department has determined that this activity is in violation of Part 301, Inland Lakes and Streams, of the Natural Resource and Environmental Protection Act, Act 451 of the Public Acts of 1994, being sections 324.30101 to 324.30113 of the Pennsylvania Compiled Laws, annotated.
The Department has been informed that one or both of the dams partially failed during a recent rain event, causing debris and flooding at downstream locations. We find that dams of this nature are inherently hazardous and cannot be permitted. The Department therefore orders you to cease and desist all activities at this location, and to restore the stream to a free-flow condition by removing all wood and brush forming the dams from the stream channel. All restoration work shall be completed no later than January 31, 2006.
Please notify this office when the restoration has been completed so that a follow-up site inspection may be scheduled by our staff. Failure to comply with this request or any further unauthorized activity on the site may result in this case being referred for elevated enforcement action..
We anticipate and would appreciate your full cooperation in this matter. Please feel free to contact me at this office if you have any questions.Sincerely,
David L. Price
District Representative and Water Management Division.
This is his response:
Re: DEQ File No. 97-59-0023; T11N; R10W, Sec. 20; Lycoming County
Dear Mr. Price,
Your certified letter dated 12/17/02 has been handed to me to respond to. I am the legal landowner but not the Contractor at 2088 Dagget Lane , Trout Run, Pennsylvania
A couple of beavers are in the (State unauthorized) process of constructing and maintaining two wood ‘debris’ dams across the outlet stream of my Spring Pond. While I did not pay for, authorize, nor supervise their dam project, I think they would be highly offended that you call their skillful use of natures building materials ‘debris.’
I would like to challenge your department to attempt to emulate their dam project any time and/or any place you choose. I believe I can safely state there is no way you could ever match their dam skills, their dam resourcefulness, their dam ingenuity, their dam persistence, their dam determination and/or their dam work ethic.
These are the beavers/contractors you are seeking. As to your request, I do not think the beavers are aware that they must first fill out a dam permit prior to the start of this type of dam activity.
My first dam question to you is:
(1) Are you trying to discriminate against my Spring Pond Beavers, or
(2) do you require all beavers throughout this State to conform to said dam request?
If you are not discriminating against these particular beavers, through the Freedom of Information Act, I request completed copies of all those other applicable beaver dam permits that have been issued.
(Perhaps we will see if there really is a dam violation of Part 301, Inland Lakes and Streams, of the Natural Resource and Environmental Protection Act, Act 451 of the Public Acts of 1994, being sections 324.30101 to 324.30113 of the Pennsylvania Compiled Laws, annotated.)
I have several concerns. My first concern is, aren’t the beavers entitled to legal representation? The Spring Pond Beavers are financially destitute and are unable to pay for said representation — so the State will have to provide them with a dam lawyer. The Department’s dam concern that either one or both of the dams failed during a recent rain event, causing flooding, is proof that this is a natural occurrence, which the Department is required to protect. In other words, we should leave the Spring Pond Beavers alone rather than harassing them and calling them dam names.
If you want the stream ‘restored’ to a dam free-flow condition please contact the beavers — but if you are going to arrest them, they obviously did not pay any attention to your dam letter, they being unable to read English.
In my humble opinion, the Spring Pond Beavers have a right to build their unauthorized dams as long as the sky is blue, the grass is green and water flows downstream. They have more dam rights than I do to live and enjoy Spring Pond. If the Department of Natural Resources and Environmental Protection lives up to its name, it should protect the natural resources (Beavers) and the environment (Beavers’ Dams).
So, as far as the beavers and I are concerned, this dam case can be referred for more elevated enforcement action right now. Why wait until 1/31/2006? The Spring Pond Beavers may be under the dam ice then and there will be no way for you or your dam staff to contact/harass them.
In conclusion, I would like to bring to your attention to a real environmental quality, health, problem in the area. It is the bears! Bears are actually defecating in our woods. I definitely believe you should be persecuting the defecating bears and leave the beavers alone. If you are going to investigate the beaver dam, watch your step! The bears are not careful where they dump!
Being unable to comply with your dam request, and being unable to contact you on your dam answering machine, I am sending this response to your dam office.
THANK YOU,
RYAN DEVRIES
& THE DAM BEAVERS
Awful Cases in the News Lately
No matter what channel you turn your TV to lately, it seems the media is highlighting one of these awful cases of missing or murdered children or young mothers. I was saddened by the North Carolina case where the murdered mother was found with bloody footprints around her body from where her toddler daughter was wandering around her body. As far as I know, this case disappeared from media coverage and is unsolved – except for suspicions surrounding the husband/father. I was disgusted by the case in Florida where the young mother was kidnapped and law enforcement could have saved her but for the incompetent 911 dispatchers in Charlotte County, Florida. And then there is the recent case where the 2 year old girl was missing for 30 days before the mother or grandmother even reported her missing.
In case anyone thinks that I think only of the criminal defendants and not the victims, it’s not true. I feel for these families and cannot imagine the pain they must be in. I too, want to make these sorry-excuses for human beings pay for what they have done. These are real criminals. The perpetrators need to be locked up forever. These people are the reason that prison cells were created – to protect the vulnerable among us. But I also believe they deserve constitutional rights, and access to legal counsel. If not given to these scum-bags, then they (the precious constitutional rights) will not be preserved for the innocent – which someday could be a loved-one of yours, or even you.
I don’t know if I will ever forget the details of the kidnapped/murdered mother in Florida. Several witnesses saw the woman pounding her fists on the windows of her kidnapper’s car, one of whom was trailing the vehicle while on the line with a 911 dispatcher. Others saw the screaming and pounding, but neglected to actually dial 911. Tragically, the two idiot dispatchers failed to let the law enforcement officers on that very road about the call. Less than 10 minutes later, she was dead and in a shallow grave on the side of a highway, brutally raped and murdered. On several occasions she could have been saved. Then the elected Sheriff had the gall to get on TV and claim that his department did a good job. Ironically, the murdered woman’s father was a deputy in that department. That is extremely revealing about the character of that politician/sheriff. But, like I have said before, oftentimes, that is what you get in Florida.
But as for the other cops that tried desperately to save this woman’s life, I have no doubt that any of them would have laid down their own lives to save hers. And that is something that I do admire about the law enforcement profession.
– John H. Bryan, West Virginia Attorney.
John H. Bryan, Attorney at Law
Have law license, will travel.
John H. Bryan is a prominent West Virginia criminal defense lawyer who not only defends people in criminal courtrooms statewide, but also is one of the top civil rights attorneys in West Virginia, frequently suing police departments and the State for misconduct. He and his law firm also have a successful personal injury litigation practice and frequently handle high profile cases.
Email John: jhb@johnbryanlaw.com
“We may affirm absolutely that nothing great in the world has been accomplished without passion.” – Hegel.
WANTED TO BUY: antique firearms and related items, as well as Native American trade items and artifacts.
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