West Virginia Criminal Law Blog

As many of you know, I have ranted previously about being in magistrate court in the State of West Virginia (see prior post here.) Unfortunately for me, just about every week I have another awesome experience in that magical wonderland of justice.

This episode however, was not in the criminal arena, it was a civil case. For those of you who didn’t know, magistrate courts in West Virginia have “jurisdiction” over civil cases where the amount in controversy is less than $5,000 (unless of course, you file a motion to remove the case to circuit court, or appeal to circuit court).

So I was in wonderful magistrate court representing the “defendants” who were sued for what was effectively “injunctive relief.” In other words, the plaintiff was asking the magistrate to make my clients do something they didn’t want to do. Never mind that magistrate courts in West Virginia do not have jurisdiction or authority to order injunctive relief (small detail, practically worth ignoring) - only a circuit judge can order such an Order.

The first outrage that happened was that the other lawyer brought a motion to the magistrate, and the magistrate signed and entered the order without me ever having been served with a copy of it, or ever getting the chance to respond. Then came another motion, then another, then another. And guess what? My clients were never given the chance to respond. It’s just par for the course in magistrate course. There practically are no rules. For the rules that do exist, the magistrates usually do not follow them. So you just have to fight fire with fire, and file motions, get them to sign it and wait for the other party to file another motion. It’s that ridiculous.

My clients had a counterclaim, so I filed an “Answer,” along with a counterclaim for damages. Well, when we show up for the “trial,” the magistrate says with a smirk, “Mr. Bryan, this is a shared courtroom, and we just don’t have time to hear your counterclaim,” to which, I responded, “are you serious, my clients just drove almost 300 miles to be here, we have our witnesses, and our claim must be heard contemporaneously with the plaintiff’s absurd case.” However, the magistrate did not relent. So I jumped up and down and threw a fit, and finally demanded a continuance so that we could get out of that “courtroom” as quickly as possible (all-the-while wondering about how quickly I could file a motion to remove the ridiculous case to circuit court).

So then, the other attorney files the same exact claim in circuit court. Without even attempting to serve my clients with a summons and copy of the Complaint, she sets a hearing and tries to get the circuit court judge to rule in her client’s favor (on the merits). Obviously, that was inappropriate since my clients had not yet been served, and the judge told her that she had to serve my clients. Either she didn’t know how, or didn’t want to spend the money to do it, so she then went back to magistrate court and set a hearing date.

So, I arrived at the hearing, and the magistrate tried to hold the trial. Never mind that my legal assistant was told by the magistrate’s office that it was supposed to be a “status conference.” I informed the magistrate that there was no jurisdiction in magistrate court as the case was currently pending in circuit court, and that we were waiting for my clients to be served.

Immediately, the magistrate yelled at me, shouting that my clients should presently be in the courtroom, that in this particular magistrate courtroom, all parties always appear, and that if they were there now, then they could be served by the other party with the circuit court service of process (which actually is not true since technically an out of state resident traveling to West Virginia to testify in court is immune from service). Then she demanded that I get my clients on my cell phone and have them authorize me to accept service on their behalf. I refused, rightly replying that I had no obligation or desire to do so.

Then the magistrate chastised me for appearing as counsel in lieu of my clients, who live out of state. After all, why drive 300 miles to appear in magistrate court when there is no jurisdiction and no possibility of having to testify? The magistrate told me that, she doesn’t care how they do it in circuit court, that it was her courtroom and that my clients should have appeared. I again reiterated that there was nothing she could do, because the matter was now in circuit court. She yelled that she didn’t care and stated that unless the circuit judge directly orders otherwise, she is scheduling the case for trial within a few weeks.

So then the other lawyer (who deserves a post of her own) goes back to circuit court. In effect she is playing both fields at the same time, waiting for either judicial entity to rule in her favor, in each courtroom telling the other judicial entity that the other one doesn’t really exist.

Only in a rural West Virginia magistrate court would you have a magistrate openly attempting to serve one party service of process for a circuit court lawsuit, and at the same time refusing to accept the overarching authority of the circuit court’s jurisdiction over the matter.

I know that lawyers across West Virginia, especially southern West Virginia, have hundreds, if not thousands, of stories just like this one illustrating the absurdity of our current judicial system called magistrate court. The moral of the story is, that if you want to have any control over your destiny in civil cases, you have to move your case into circuit court - which requires a filing fee and more extensive attorney’s fees - even in small-peanuts cases. And if you have a criminal charge against you, then God help you. If you were charged with a misdemeanor, then you have the choice of either trying your case to the magistrate (who did not go to law school and doesn’t know the first thing about the Rules of Evidence or the Rules of Civil Procedure, or the Trial Court Rules for that matter), or a jury. If you request a jury trial in magistrate court and lose, then you have to pay for the costs of the jury. Needless to say, most poor folks charged with a crime in West Virginia choose to allow the magistrate to decide their fate.

I tell every potential criminal client who walks in my door, if you want me to represent you on a misdemeanor, then you better be requesting a jury trial. Because I will not take responsibility for defending a case before a magistrate. Some magistrates are infamous in this respect. I know of one magistrate whom defense attorneys consider a win in her courtroom to be getting the minimum sentence.

Of course, there are always exceptions. I have encountered a few magistrates who are extremely fair, hard working, and who make a real effort to learn and follow the law. Are there better ways to set the system up? Yes, absolutely, look at North Carolina District Court.

- John H. Bryan, West Virginia Attorney.

From the Bluefield Daily Telegraph:

Troopers raid Sunday morning chicken fight

By Bill Archer
Bluefield Daily Telegraph

BARTLEY — An anonymous tip Sunday morning led troopers with the Welch Detachment of the West Virginia State Police to a chicken fight in a remote McDowell County barn.

State police issued 46 misdemeanor citations for “attendance of an animal fight venture,” and arrested one man who attempted to flee the sight of the fight on foot, according to Trooper J.W. Keffer.

“He just didn’t want to get a ticket,” Keffer said of the individual who tried to flee. “There may be other arrests pending. Several people left vehicles at the scene. We had them towed. We’ll issue citations when they come to pick up their vehicles.” As a result, the case remains under investigation, according to Keffer.

Keffer said he received a tip by telephone that the chicken fight was taking place in a barn at Bartley No. 3 Hollow. Police arrived on the scene at 10:30 a.m. “The barn was pretty nice on the outside,” Keffer said. “On the inside, there was a chicken ring in the middle that was surrounded by bleachers and several chicken pens. There were also two small heating stoves,” he said.

Under West Virginia code, the penalty for a conviction on the charge of attending an animal fighting venture is a minimum fine of $100 and not more than $1,000.

“We think they must have just gotten started,” Keffer said. “We did not see any chicken carcasses at the scene.” He said that after state police issued the citations, the people who were cited were allowed to take their chickens and leave.

In addition to Keffer, Senior Trooper K.L. Pack and Trooper First Class C.K. Morton, also of the Welch Detachment, participated in the raid.

– Contact Bill Archer at barcher@bdtonline.com

Thanks again for your readership of this Blog, which has already accrued over 2,200 hits this month alone. Again, please feel free to leave comments on any particular post, or to contact me by email at jhb@johnbryanlaw.com, or at 1-888-54-JBLAW. You can also visit my website at www.johnbryanlaw.com.

Thank you for your readership of this Blog, which has already hit over 1,200 just this month. Please feel free to subscribe to my RSS feeds and to comment on specific posts. If you would like to communicate with me directly, you can email me at jhb@johnbryanlaw.com, or by phone, at 1-888-54-JBLAW. Thanks again for your support. - John H. Bryan, Attorney at Law.

On December 6, 2006, a stabbing death took place at 417 Temple Street in Hinton, West Virginia. Three people were involved in an altercation in a home, one of them was stabbed. The two survivors both blamed each other. This set the foundation for a trial that would last nearly two weeks in December 2007.

Lewisburg attorney Tom White, as well as myself, were appointed by the court to represent Mrs. Brown. For over a year, we prepared the case for trial. We knew that it would be difficult for her to get a fair trial in Summers County, West Virginia, so we filed a motion for change of venue. The motion consisted of twenty-six pages of negative and biased media accounts that had already been injected into the minds of potential Summers County jurors. However, the motion was denied and we went to trial on December 11, 2007.

The end result was that Patricia Brown was acquitted of first degree murder, but was found guilty of second degree murder. Of interest to this blog however, is the conduct of the West Virginia State Police Forensics Lab during the investigation of Mrs. Brown and during the trial itself. What most West Virginians do not know is that the State of West Virginia does not have a separate and independent forensics lab to perform the DNA and other testing in criminal cases, as does almost all other states. This has presented serious problems in the past, and it continues to pose a problem. I will detail some of these problems in my next post.

 Welcome to the WVCriminalDefenseAttorney.Com blog. I was inspired to start this blog after diving into the murky depths of the West Virginia criminal justice system in a recent murder trial that I was involved in - which will be detailed in my next post. Most of us never encounter this dark world, except through the occasional speeding ticket. Citizens are rather adamant about opening up and “shining light” on our political process through enacting various “sunshine laws.” However, the same cannot be said for the criminal justice system, which is run by a mixture of politicians, lawyers and law enforcement officers. This assortment of characters wield extreme power, sometimes recklessly, and almost always with no accountability to the people.This is especially true in West Virginia, where we are lacking important safeguards that exist in other states. For example, we have no intermediate court of appeals. This means that our West Virginia Supreme Court of Appeals is overloaded with cases and cannot guarantee appeals to all people convicted of crimes. Most West Virginians are unaware of this scary fact: if you are convicted of a crime in West Virginia, you have no right to an appeal. In fact, your first appeal as of right may be to the United States Supreme Court, where the chances of your case being considered are literally zero. And as I plan on detailing in future posts, it actually doesn’t take that much to get a jury to convict an innocent person.Lastly, the goal of this blog is not to drum up business for my criminal defense practice, but rather to inform the people of West Virginia of the “going-ons” of the West Virginia criminal justice system, and to attempt to disinfect some of the dark spots and problem areas of the system by using good old fashioned sunshine. My goal is to encourage reforms in our state to help safeguard innocent citizens from wrongful convictions.