WV Civil Rights Lawyer

Police Misconduct, Civil Rights Law

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.

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November 4, 2008 - Posted by | Uncategorized

2 Comments »

  1. John,

    I have no knowledge and thus no opinion on the merits of the case, but I suggest you employ similar restraint. you may be correct in your suspicions but you also may not. It’s not enough for conviction to prove only that a person wrote a check for an amount the account did not have sufficient funds to cover when the check was presented.

    As you probbaly know, it is necessary to prove criminal intent. I have had cases where I was able to show that a person who wrote a check had justification to remove funds or stop payment on the check because he did not receive the consideration promised in exchange for the payment. I’ve had cases where the person could show that the check was not intended as promised payment but merely as a show of good faith intention to complete a transaction in the future and that the payee knowing this presented the check anyway. There are other factual defenses that can arise in these cases as well.

    Let’s say I write you a post-dated check for $5000 and you agree to deliver a vehicle and title to me within three days. Then you don’t deliver the title but still present the check for payment at your bank. Just because I don’t then have the $5000 in my account am I guilty of a crime in your eyes?

    Unless you know the facts of the case, you should refrain from reachng such firm conclusions. I hope you get juries that are more open minded when you are trying your cases, especially if your client is someone against whom some people might have preconceived notions.

    Comment by Sam | November 4, 2008 | Reply

  2. Sam,

    If there was a factual defense to the worthless check charge as you suggest, then it would not have been charged in the first place. The statute expressly excludes any of the situations you proposed, and the Sheriff’s department filed felony charges, so they must have felt compelled to do so.

    Of course, if it was mistakenly charged, it should be dismissed. That may be the case, but they certainly didn’t make that clear. Furthermore, this was not simply a worthless check charge, because there is no felony penalty for merely writing a worthless check.

    The charge likely was W. Va. Code 61-3-39, which is “obtaining property in return for worthless check on a preexisting debt, which is a felony if the amount of the check is over $500. So the allegation must have been that he wrote a worthless check for “multiple thousands” in exchange for actually receiving property, and then the check bounced. That was allegedly in January, and then the citizen complained in October. Regardless of his “criminal intent,” if he kept whatever property he received, there would have been “a case” against him.

    And your right, no lawyer should ever keep me on a jury if their cop client is on trial [and accused of abusing their authority]. Of course, the problem I have is that only when hell freezes over would you be faced with a cop on trial. It would never get there. Unless the prosecutor or another cop is the victim, these cases are either dismissed such as in this case, or they are given a sweetheart deal (i.e., misdemeanor brandishing rather than felony wanton endangerment).

    But of course, that’s just my opinion and I could be wrong.

    Comment by johnbryanlaw | November 4, 2008 | Reply


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