It has only been 6 years, but we won the appeal of the dismissal of the Walnut Springs litigation against United Bank and the McQuade Appraisers.
I started a new website called “Use of Force Source” at UseofForceSource.com. The purpose is to establish an online resource to discuss and compile Fourth Circuit federal case law, and U.S. Supreme Court case law on the use of physical force – both police situations and self defense situations. I have already listed a bunch of black letter law on excessive force in the Fourth Circuit (so Virginia, West Virginia, Maryland, North Carolina and South Carolina). It will be a blog format, and will be specific to use of force cases. My intention is to post about specific cases, going over the facts, as well as the law. I also like to listen to the oral argument audio since it gives you much more insight into the case and the reasoning behind the Court’s decisions.
I already posted my first post today, discussing the November of 2013 Fourth Circuit opinion from Ayala v. Wolfe, which was a police shooting case.
There was a nice article on the front page of the Charleston Gazette this morning about the Sawyer Case.
“Today the citizens of West Virginia, Maryland, Virginia North Carolina and South Carolina have more constitutional protections than they did yesterday,” John Bryan, Sawyer’s attorney, wrote in a statement.
“As a result of today’s ruling, which affirmed the District Court for the Southern District of West Virginia, law enforcement officers will be taught to treat people differently, and that if they fail to do so, there will be consequences. Because of Brian Sawyer, and the federal court system, millions of people have more freedom. And that is something I am very proud of.”
There was also an article in the Parkersburg newspaper:
Well, off to another trial this morning.
ETA: We won the property dispute trial. We have been very blessed to have streak of wins in WV state-law easement disputes. Although they might seem boring, they are quickly becoming one of my favorite types of cases, second only to civil rights cases. I do enjoy interesting criminal cases. However, I do not enjoy the stress of gambling with someone’s liberty. I much rather prefer property rights or money. The worse case scenario is never the end-of-the-world.
Also an article in the WV Record:
We won the Sawyer case at the U.S. Court of Appeals for the Fourth Circuit. The audio from the oral arguments is one post down. Here is the opinion. I have been unable to discuss the case for about a year. Obviously, this is what has been happening. I believe this is, and will be, a very important decision. Although there was no new law created, this has greatly clarified, explained, and set the course, for future excessive force litigation and instruction.
Getting ready to leave today to argue before the U.S. Court of Appeals for the Fourth Circuit.
An article in the West Virginia Record commented on several West Virginia Supreme Court Justices, Justices Ketchum and Davis in particular, giving an attorney a “tough time” during oral arguments:
The examination of Attorney L. during oral arguments was so one-sided that Ketchum even suggested to attorney Thomas M., who represented Pullman and Structural, not say anything that would lose him the case.
And when Tiffany D., who was arguing for Ershigs, reminded the justices that the party harmed by the sanctions was AEP and not the law firms that handled the case, Ketchum responded, “You don’t think AEP has a nice malpractice suit against their lawyers?”
This brought back memories. I was once before the WVSC for oral arguments and my opponent was given a really “tough time”. After they finished, they told him to sit down, pointed at me, and told me to stand up, it was my turn. I looked at them and said, “your honors, I think I’ll just quit while I’m ahead.” One of the same Justices said “I think that’s a good idea”. So I basically just sat down.
I know that many people have been following this case, so here is an update. On Monday I was ordered by the U.S. Fourth Circuit Court of Appeals to respond to a Petition for Writ of Prohibition filed by the defendants in the Sawyer v. Asbury 1983 excessive force case. The new jury trial on damages is scheduled for next week. I was given until yesterday to respond. Unless the Fourth Circuit says otherwise we are having a trial on Tuesday. Here is our response:
(Yes I did this in two days, so please excuse any mistakes)
As explained by the Charleston Gazette this morning, new rules have been adopted for West Virginia appeals to the WV Supreme Court of Appeals, which will become effective in December of this year. This is a significant change for criminal defense in West Virginia. The Court will still be able to deny a criminal defendant’s appeal. However, from that point forward, the Court will have to give a reason for that denial.
Since 2004, it has been a concern of mine that persons convicted of sex crimes in West Virginia essentially will have no possibility of appeal. The problem is that the justices must campaign for election or reelection. In 2004 a justice lost his bid for reelection, mostly due to negative campaign advertising alleging that he freed a convicted sex offender (despite the fact that it was the correct decision legally – and despite the fact that there was obviously a majority consensus in that particular case since no justice can act alone). After that, what justice is going to want to reverse a conviction for any sex offense, regardless of what the correct legal decision is?
I’m not trying to protect child molesters. The fact is that “sex crimes” have turned into Salem witch hunts. The average person would be stunned at how many “sex crimes” there are. The small minority involve conduct which the average person would deem to be child molestation. The end result is that we have watered down the sex offender registry with individuals about whom people are generally not concerned. So when you actually have a child molester, it basically goes under the radar.
The average person would also be staggered at the volume of legislation and bureaucracy dealing with sex offender registration. It has taken over West Virginia’s criminal code, and is beginning to take over parole in West Virginia. Now, sex offenders will almost always qualify for “extended supervision” by WV parole officers. So if you are convicted of a sex offense, at the behest of the prosecutor, even after you serve your time you can be supervised (basically be on probation) for decades – in addition to already being required to register as a sex offender for life (the rules and intricacies of which would take about a week to explain). You can be forced to take polygraphs and wear an ankle bracelet.
We should be provided an accounting of how much taxpayer money is spent on the sex offender system. I bet it would be staggering. I would also like to know how many children it has saved from harm. Probably very few. Its like making schools “gun free” zones. It does nothing to accomplish its alleged purpose, and actually ends up doing more harm than good. Teachers or adult students cannot be armed to defend themselves and others. Likewise, parents will have no idea a real sex offender is in their neighborhood – because there are so damn many “sex offenders” that the truly dangerous ones get lost in the crowd.
Good people, who pose no threat to the public, can and have gotten caught up in this witch hunt. Politicians, nor judges, are willing to take a step back. This is a mob mentality. The “sex offender” brand rules – just like a witch. If you step into the way of one of these prosecutions, you are in support of child molesters – you are a witch, and you lose your seat, or lose your bench.
Of course, we don’t need career politicians anyways. Maybe judges, but not politicians. At least now there is a right to be told why a criminal appeal is being denied. Next, we need reform. Just like taxes should be cut, laws should be cut. Let’s stick to the basics. When we make everything a crime, we give corrupt or power hungry prosecutors the power to charge anyone for anything at anytime. Never a good idea. Some are just bad apples. The scary thing is, that bad prosecutors have a common trait: their will to win and avoid embarrassment is greater than their respect for justice. They will convict an innocent person to save face, or even to achieve personal retribution or revenge. And the ignorant electorate has no idea. They hear a radio ad touting how “tough on crime” the prosecutor is, and they vote for him. Elections are not won by promising to ease up on criminal prosecutions, or by promising leniency or mercy. Again, it’s a mob mentality. The WV Supreme Court should be completely insulated from the mob. Hopefully that will be a future reform.
About a month and a half ago, I mentioned that I was working on a petition for appeal that contained a factual scenario extremely similar to the Arizona v. Gant holding. Well, it was filed early this month, and now my client has authorized me to post a copy of the filed petition. I think it contains some interesting legal issues which have yet to be examined in West Virginia, one of which will be the use of Arizona v. Gant as it applies to “inventory” searches in West Virginia.
Additionally, this is an extremely odd case (factually). And its one of those where the police and the prosecutor really went after the guy and he ended up getting the proverbial “book” thrown at him. It illustrates the danger of jury trials, and the power of the prosecutor. If they want you punished, there are enough laws out there that they can bend the facts around, that they can turn you into a felon pretty quickly – not to mention a registered sex offender. And then they can charge you with multiple counts, basically restricted only by their whim. The only way to stop them is to appeal.
Also, a H/T to Tom Rist for assisting with the case.
In a 4-1 decision, authored by Justice Menis Ketchum – a Justice with criminal defense experience – which was filed yesterday, the West Virginia Supreme Court of Appeals actually acquitted a woman who had been convicted of murder in Cabell County, West Virginia.
A jury convicted Tanya D. Harden of first-degree murder in 2007, ignoring her argument that she acted in self-defense. She said Danuel Harden Jr., her husband of 11 years, told her that “nobody was going to walk out of the house that night,” including their two children. She apparently shot her husband with a shotgun while he was sleeping on the couch.
This was basically a “battered woman syndrome” self-defense case.
The justices’ decision acquitted Harden of murder charges, and ordered her released from prison immediately. She had been serving a life sentence with a recommendation of mercy.
Syllabus Point 3 of the Opinion held that:
Where a defendant has asserted a plea of self-defense, evidence showing
that the decedent had previously abused or threatened the life of the defendant is relevant
evidence of the defendant’s state of mind at the time deadly force was used. In determining
whether the circumstances formed a reasonable basis for the defendant to believe that he or
she was at imminent risk of serious bodily injury or death at the hands of the decedent, the
inquiry is two-fold. First, the defendant’s belief must be subjectively reasonable, which is
to say that the defendant actually believed, based upon all the circumstances perceived by
him or her at the time deadly force was used, that such force was necessary to prevent death
or serious bodily injury. Second, the defendant’s belief must be objectively reasonable when
considering all of the circumstances surrounding the defendant’s use of deadly force, which
is to say that another person, similarly situated, could have reasonably formed the same
belief. Our holding in Syllabus Point 6 of State v. McMillion, 104 W.Va. 1, 138 S.E. 732
(1927), is expressly overruled.
Where it is determined that the defendant’s actions were not reasonably
made in self-defense, evidence that the decedent had abused or threatened the life of the
defendant is nonetheless relevant and may negate or tend to negate a necessary element of
the offense(s) charged, such as malice or intent.
An occupant who is, without provocation, attacked in his or her home,
dwelling or place of temporary abode, by a co-occupant who also has a lawful right to be
upon the premises, may invoke the law of self-defense and in such circumstances use deadly
force, without retreating, where the occupant reasonably believes, and does believe, that he
or she is at imminent risk of death or serious bodily injury. In determining whether the
circumstances formed a reasonable basis for the occupant to believe that he or she was at
imminent risk of death or serious bodily injury at the hands of the co-occupant, the inquiry
is two-fold. First, the occupant’s belief must be subjectively reasonable, which is to say that
the occupant actually believed, based upon all the circumstances perceived by him or her at
the time deadly force was used, that such force was necessary to prevent death or serious
bodily injury. Second, the occupant’s belief must be objectively reasonable when
considering all of the circumstances surrounding the occupant’s use of deadly force, which
is to say that another person, similarly situated, could have reasonably formed the same
belief. Our decision in Syllabus Point 2, State v. Crawford, 66 W.Va. 114, 66 S.E. 110
(1909), is expressly overruled.
You know, sometimes prosecutors should come to the conclusion that the guy deserved it. They should have given this woman a break. She was protecting her children. The police wouldn’t have stopped him from killing her, or the children. That’s why we have guns for self defense. It’s each of ours individuals responsibility to protect ourselves and our children. The prosecutors were trying to victimize these children by turning them into orphans.
From Tanya Harden’s arrest to her sentencing, the State has never disputed an essential fact – that the decedent threatened to kill his wife and children and used his fists and shotgun to brutally beat his wife just before he died. The injuries suffered by Tanya Harden, including facial fractures, were preserved on photographs taken the day of her arrest and made part of the record in this case, and were attested to by the State’s own witnesses.
- Civil Liability
- Computer Crimes
- Concealed Weapons
- Criminal Records
- Denial of Medical Care
- Domestic Violence
- Excessive Force
- Financial Abuse of Elderly
- Forensic Labs
- Governmental Liability
- Grand Juries
- History Series
- John H. Bryan
- Judicial Misconduct
- Law Office Tech
- Law School
- Media Coverage
- Medical Examiners
- Money Laundering
- motions for change of venue
- Negligent Homicide
- Plea Agreements
- Police Misconduct
- Preliminary Hearings
- Pretrial Hearings
- Right to Speedy Trial
- Searches and Seizures
- Self Defense
- Sex Crimes
- Sex Offender Registration
- State Agencies
- United Bank Lawsuit
- Vehicular Crimes
- West Virginia Concealed Carry Laws
- West Virginia Gun Laws
- White Collar Crime
- Wildlife Violations