WV Civil Rights Lawyer

Police Misconduct, Civil Rights Law

Worshipping Psychobabble

Lately I have become unusually aggravated by so-called psychological “experts” testifying in criminal and civil courtrooms in West Virginia. I have cross examined these so-called “doctors” all-the-way from Monroe County to Berkeley County in the past month.  I have reviewed their reports.  I have come to the conclusion that (big surprise) its all about money.  Yours and mine.  There is an entire industry of people who, with maybe an extra year of college, get to milk the taxpayers for their junk-science counseling and fabricated analysis.  They would not survive in the free market, except of course, in the realm of being “expert witnesses” for litigants who can afford them.

From child custody cases in Family Court, to abuse and neglect cases in Circuit Court, to the evaluations of defendants in criminal sentencing in Circuit Courts, it’s always the same thing: psychoquack gets money, person meets with psychoquack, psychoquack writes a report dribbling on about some test he or she ran on the person and what the results mean and ultimately giving an opinion that’s not worth a grain of salt.

I cross examined an “expert” in an abuse and neglect trial in Circuit Court the other day.  I found out that this guy “examines” parents who are facing termination of their parental rights, upon request by the State (DHHR – who is the party seeking the termination) to the tune of about 20 per month, all “referred” by DHHR, whereby he gets paid at least 400-500 dollars for each “examination”.  That’s about 9,000 to 10,000 per month of income this guy receives from the State to throw these folks under the bus.  I guess it’s no big surprise what his opinion was in my case.  Of course it was that parental rights should be terminated – despite the fact that the treating psychoquack and the social worker both had the opposite opinion.  He was paid for his opinion, and he gave it – regardless of whether it was the right thing to do.

In Family Court cases, “expert” psychoquack witnesses routinely testify, allegedly in the best interests of the children.  But they are nothing more than psycho-prostitutes, where the party who hires them is by default the ideal person to maintain custody of the child(ren).  Is there anything more disgusting than a “professional” who pretends to act in the best interests of a child, but 100% of the time in reality acts in the best interests of the party paying them?  I’d rather associate with inmates.

And then there are the psychoquacks who make a living off of court referrals for evaluations in criminal sentencings.  Many times they charge 3,000 to 5,000 dollars per “evaluation,” and the poor defendant, if he or she has some income or assets, has no choice but to pay it – the judge ordered it.  And for those who are indigent, guess who foots the bill?  Ultimately the taxpayers.  Every one of these reports was about the same: pages and pages of dribble about some scientific and complex sounding test that they ran, and the scores which the defendant scored on each individual test.  Then you turn about 10 pages to get to the very end, and there is about a one page opinion that goes on and on without really saying anything helpful, and which includes “recommendations” which are copy and pasted from some other report that they did the day before.

There.  I’ve released these negative thoughts which have been brewing in my head for quite some time – now you deal with them.

– John H. Bryan, West Virginia Attorney.

October 13, 2009 Posted by | Children, Experts | 2 Comments

Former “Charleston Football Player” Found Guilty of Child Neglect

As reported in the Charleston Daily Mail today, Rainest Crawford, 24, of Charleston was convicted after a jury trial of child neglect. The facts of these cases are such that they could easily go both ways. Because who would harm an infant unless it were an accident? But as in other cases, an attempted cover-up or lying sometimes secures the conviction. And in this case, he denied knowing what harmed the infant for the first two days after the injury, and then he came clean claiming that it was an accident. If you accidentally injure a baby, you should be able to tell a physician exactly what happened to the child in order to promote the best possible medical care. And if you don’t, then you deserve a felony conviction of child neglect. These circumstances seem to be playing out in the Caylee Anthony case as well.

The article stated the following:

Prosecutors, however, said the 210-pound former University of Charleston football player intentionally harmed the baby. Their primary evidence was that Crawford was the only one in the room with the baby at the time and he told doctors, the mother and police for two days that he didn’t know how she sustained those injuries.

First of all, what difference does it make that the guy used to play football for the University of Charleston? It’s not like he is famous… Should we label all criminal defendants by what sport they used to play? And why mention that he weighs 210 pounds? When you have an adult up against a baby, it doesn’t really matter what your weight is. Furthermore, 210 pounds is not that large. I am at least thirty pounds heavier and I certainly don’t think my weight should be mentioned in an article about me – unless it specifically is written about my amateur sumo-wrestling hobby.

The article quoted Crawford as stating that:

“I’m sorry,” he said. “It all happened so fast. I don’t want to be a bad parent. She was my first child, and I didn’t have any experience or nothing. I’d never been in that situation before.”

People react differently to situations such as this, and it is certainly possible that it was a genuine accident. Knuckle-dragger former football players such as this guy and myself have to be extremely careful when holding an infant. Do the State’s experts really know for a fact that this was caused by “abuse” and not an accident? As with any expert medical testimony, there are two sides to every opinion. Usually defendants such as this do not have access to adequate expert testimony to present the “other side of the story” to the jury.

Regardless, this is very sad. Infants are completely innocent victims. The article didn’t say what permanent injuries were suffered by the child, but even a slight injury to a baby is a tragedy.

You can read the full article here.

– John H. Bryan, West Virginia Attorney.

August 15, 2008 Posted by | Children, Trials | 1 Comment

West Virginia Sex Offender System Watered Down – and sometimes unjust

From the Register-Herald today:

A Beckley man has been arrested and charged with his second offense of “failure to register as a sex offender.” Well, the guy was registered, you can look it up yourself on the WV Sex Offender registry, found here.

What crime did he commit? His wife (presumably) bought a car and it had his name on it. He didn’t notify the State Police within the required amount of days the statute requires. If you didn’t know, a conviction as a sex offender requires the person to notify the State Police anytime they do or buy anything.

I don’t have a problem with this when it comes to real sex offenders – you know, the child abductors and child molesters, etc. In fact I think we should increase the penalties and protections against these predators. But any “sexually-motivated” conviction brings the requirement to register as a sex offender for life. That waters down the purpose of the sex offender registry. Not every sex offender is dangerous. Not every sex offender deserves to be subjected to the sex offender registry.

What about the guy charged in this case? A glance at his “offender details” reveals that he was convicted in the year 2000 of two counts of 3rd degree sexual abuse. He was given a suspended sentence and 15 months probation – so he did not do any jail time. What is “3rd degree sexual abuse” exactly, and how is that different from 3rd degree “sexual assault?.” Third degree sexual “assault” in West Virginia is essentially statutory rape – sexual intercourse between someone 16 or under and someone over 16 and also 4 years older than the “victim.” I put “victim” in quotes because many times the “victim” is absolutely old enough to be responsible for his or her actions and that fact should not be ignored. The “Assault” charge is a felony and carries up to 5 years in prison.

Third degree sexual “abuse” occurs when one person subjects another person to “sexual contact” without the latter’s consent, when such lack of consent is due to the victim’s incapacity to consent by reason of being less than 16 years old. What is “sexual contact?” It could be slapping someone on the rear-end, or an improper touching of any sort. It doesn’t take much. Actually it could just be a lie. Poor saps are convicted all the time from some 15 or 16 year old girls testimony before a jury, and without much more evidence – and it could very well be a lie. The only defense to this is a good lawyer who can talk some sense into the jury.

Lastly, the victim must be less than 16 years old. That means that the old-farts in the state legislature decided that a young girl on the day before her 16th birthday is absolutely incapable of forming her own decisions, she cannot consent to sexual conduct, but one day later, this 16 year old girl can have all the sexual escapades that she wants. In one magical day, she has become a wise and responsible adult.

So what about the guy in the article? I have no idea what the facts in the case are, but it could be relatively minor, or he even could be innocent. On the other hand, he could have done something more serious and pled down to this charge. Who knows. The point is, that even for relatively minor “sex offenses,” non-dangerous people are subjected to a life of being charged with felonies every time they buy a new car or go on vacation. The charge they put on this guy is a felony and brings 10 to 25 years. And the original charge that he was convicted of was a misdemeanor and only carried a potential penalty of up to 90 days in jail… Think about that. But hey, just like lawyers, these people do not make sympathetic victims and no one is going to help them.

You can read the full article here.

– John H. Bryan, West Virginia Attorney.

July 10, 2008 Posted by | Children, Sex Crimes, Sex Offender Registration | 4 Comments

Mom Robs Slot Parlor With BB Pistol, Children in-tow

From the Charleston Gazette today:

This is another one of those “only in West Virginia” items…

A St. Albans woman, who has since qualified for the Parent of the Year award and the Intellectual Criminal of the Year award, robbed a video slot parlor with a Crossman BB pistol. She held it to the clerk’s head and stole her cell phone and keys. It didn’t say whether or not she took the clerk’s car with the keys, I’m assuming she did not – since she only had to escape a few houses down.

She was found sitting on a porch a few houses away a short time later by police. She had the cash, the keys and the cell phone – and the kids I’m assuming – with her on the front porch.

She later told police that she just wanted a better life for her kids. Well, this is probably the best thing that could happen to her kids because now they will be raised by someone else – anyone else.

What an idiot.

You can read the full article here.

– John H. Bryan, West Virginia Attorney.

July 2, 2008 Posted by | Children, Robbery | Leave a comment

WV Father Convicted of Infant’s Murder 27 Years Ago

From the Charleston Dail Mail:

Apparently, there was an autopsy performed on this child back in 1981 which indicated that the infant died as a result of being shaken, but it was never delivered to the prosecutor’s office. Talk about gross incompetence…

Just remember, these are the same medical examiners that make mistakes in the other direction as well. Medical examiners for the most part couldn’t get a job working in a hospital, or in private practice working on actual living beings. Their incompetence and skewed sense of purpose can’t maim or kill a cadaver, but they can cause an innocent person to get convicted.

Read the full article here.

– John H. Bryan, West Virginia Attorney.

June 20, 2008 Posted by | Children, Experts, Forensic Labs, Medical Examiners, Murder | Leave a comment

Kanawha County Mother Charged in 1-Year-Old’s Death – Police Should Tread Carefully

A story in the Charleston Daily Mail today reported that a Kanawha County mother was charged criminally with the death of her 22 month-old son.

Elizabeth Dawn Thornton, 21, was arraigned in Kanawha Magistrate Court in connection with the death of Constantine Alexander Washburn, known as Alex.

Lt. Sean Crosier, of the Kanawha County Sheriff’s Department, said the infant died May 31 as a result of injuries received May 26 in his Cross Lanes home. Crosier said the boy’s severe brain injuries and other injuries would have required immediate medical attention, but that Thornton did not seek help until a friend called an ambulance on May 29.

Crosier said authorities waited several days before charging Thornton. “This is a very, very serious allegation and we wanted to make sure everything was right,” he said. He said authorities are still questioning other family members, including the boy’s father, 31-year-old Christopher Washburn.

Police believe the elder Washburn may have been present when the boy was injured. Crosier did not know if other charges are pending.

According to the criminal complaint, both parents told police Alex Washburn bumped his head on a table and hit his chin on a toilet. But doctors said the boy’s severe brain injuries and bruising on his neck did not support their stories.

As a criminal defense attorney, this is the most upsetting type of case, because babies are innocent 100% of the time and have been robbed of their life. Secondly, there are many types of accidental situations that could be construed to be child abuse or neglect, resulting in essentially murder charges against parents who have suffered a great tragedy.

In these types of cases, there is a very fine line between parents who deserve to rot in prison, and parents who are either innocent, or unintentionally harmed their child. What separates the two? The medical examiner who performed the autopsy. The ME will come up with some reason why the injuries do not corroborate the parent(s) version of what happened. Therein lies the problem: what happens when two doctors disagree on the autopsy results and their necessary conclusions? You have a situation where two doctors testify against each other for opposing parties in a court room. But this is not a civil case, this is a criminal case, with everything at stake, not just money.

Case in point: I had a similar case where a 6-month-old child died tragically. The autopsy was performed and it was ruled SIDS (sudden infant death syndrome) by the ME. Law enforcement thought something was fishy, and they didn’t like the ME’s conclusion, so the ME was fired, and a new ME was brought in to take a second look. Guess what? The second ME ruled the death a homicide, based on the conclusion that blood in some cavity of the body meant it must have been murder, or that someone was lying. So the investigators leak the story to the newspapers and start interrogating the parents.

So what happened? After being devastated by the death of their infant, the parents were already at the end of their rope. Within months, both parents committed suicide. Tragically, an entire family disappeared from the world.

The point is, that investigators better make damn sure they know what they are talking about, and the parents better run – not walk – to an independent physician to review the ME’s findings.

Read the full article here.

– John H. Bryan, West Virginia Attorney.

June 6, 2008 Posted by | Children, Medical Examiners, Murder, Negligent Homicide | Leave a comment

Mercer County Teacher Charged With Sexual Abuse- Illustrates Abuse of the Law

From the Charleston Daily Mail:

A Montcalm High School teacher accused of having a relationship with a student faces sexual abuse and abduction charges.

State Police First Sgt. Gary Tincher says 30-year-old Christi Lee Williams was arrested in late April.

Williams remains free on bond after being charged with sexual abuse by a parent, custodian and guardian and abduction of a student within 1,000 feet of a school.

Tincher says Williams is accused of having a relationship with a 16-year-old male student who allegedly left school property with her.

Tincher says the teacher has been suspended from her job.

What is the deal with young, attractive teachers across the country having these sexual relationships with young boys? I can’t remember hearing anything like this when I was in high school – other than in a Van Halen song.

Let’s look at the charges: First, abduction of a student within 1,000 feet of a school. Okay, that charge is garbage. The kid was 16 – old enough to drive, and actually 16 is the age of consent. The allegations are that he went willingly. Prosecutors and legislators can make up whatever law and charges they want, but the fact is that there was no abduction. This is just a garbage charge to help them get a plea.

Secondly, sexual abuse by a parent guardian or custodian. This is the most abused and misused charge on the books. The reason is this: in almost every situation, like it or not, the legal age of consent in West Virginia is 16 years old. That means that ignoring relationships, this 16 year old kid can have sexual relations with whomever he wants. However, if there is a relationship, then all of a sudden the other party goes to prison for 10 to 20 years. That’s right, that is the punishment for this charge (something that you are not allowed to tell the jury). So, if the prosecutor alleges the other party is a babysitter, teacher, whatever – even if the kid is 16 or 17 and has his own car and drives all over the place, it then becomes punishable by 10 to 20 years. This is an abuse of the law. The charge was meant to cover awful situations where parents or actual guardians abuse children under their care. The problem is that the statute was written much to broadly, thus allowing police and prosectors to abuse it. For instance, this woman is facing 10 to 20 on that charge. Under the statute, technically, she can be convicted on it. The jury never gets to know that she will get 10 to 20. They will assume she will get probation, or maybe 6 months or a year. She will get convicted on the charge, despite the unfairness of it. The end result is, that her lawyer will most likely advise her not to take the chance of going to trial, and to accept the plea offer of misdemeanor battery with a sexual motivation, or something like that, which will put her in jail for a year and make her a registered sex offender for life.

Read the full article here.

– John H. Bryan, West Virginia Attorney.

May 7, 2008 Posted by | Children, Juries, Legislation, Plea Agreements, Police, Prosecutors, Sex Crimes, Sex Offender Registration | 2 Comments

Not Guilty Verdict in Summersville Sexual Abuse Case

Yesterday Richard Workman, 40, of Summersville, West Virginia, was acquitted on charges of first-degree sexual abuse and sexual abuse by a parent guardian or custodian after a jury trial. The jury deliberated less than an hour before returning the not guilty verdict.

Reportedly, there was no physical evidence corroborating the testimony of the alleged victim. The alleged victim, who testified, was ten years-old. Assistant prosecutor Kelly Hamon said during closing arguments the girl had no reason to lie or to make up a story about Workman. Hamon also said Workman had two years to work on his story and was unable to testify without the aid of a written time line.

These are the most frightening cases imaginable. These charges will put people in prison for the same amount of time as first or second degree murder. However, unlike murder cases, the State does not collect a large amount of evidence. Prosecutors often rely solely on the testimony of alleged victims. The problem is, that without corroborating evidence, how can that be evidence beyond a reasonable doubt? Prosecutors like to rely on the argument that the alleged victim “had no reason to lie or to make up a story” about the defendant. The fact is, that it has been documented time and time again that some children will lie and make things up. Does it matter why they are doing it? No, it only matters that they could be making it up and there is no corroborating evidence.

In these types of cases (in West Virginia), the defense can give a special instruction to the jury – called a “Perry Instruction” informing the jury that if they believe that the testimony of the alleged victim is uncorroborated, they should scrutinize that testimony with “care and caution.”

This case is very similar to a case that I tried earlier this month, after which my client was also found not guilty. People don’t realize that in order to be found “not guilty,” all 12 jurors have to unanimously return a verdict of “not guilty.” Needless to say, it can be very difficult to get 12 people to agree on anything. The goal of the defense attorney in these cases is to pound into the jurors’ heads the fact that the prosecution has the burden of proof to prove the defendant guilty “beyond a reasonable doubt.” This is not always an easy job, because jurors want to listen to the alleged victim testify, and then listen to the defendant testify (which, by the way, the defendant almost always has to testify in these cases) and then compare the two. They tend to choose the one they most believe. Their duty, however, is to compare the alleged victim’s testimony and the state’s lack of evidence against the “reasonable doubt” standard – which in reality should be a difficult burden for the state.

However, for every acquittal, there are probably several others who are wrongfully convicted on evidence that was far less than a “reasonable doubt.”

Read the entire article from the Register-Herald here.

– John H. Bryan, West Virginia Attorney.

April 17, 2008 Posted by | Children, Juries, Prosecutors, Sex Crimes, Trials | Leave a comment

Monroe County School Bus Driver BAC was .093

From today’s Register-Herald:

Prosecutor: Bus driver’s alcohol level was higher than field test showed

— MONROE COUNTY

By Christian Giggenbach
Register-Herald Reporter

UNION — Medical tests have revealed the blood alcohol level of a Monroe County school bus driver charged with DUI following an accident in February was considerably higher than his preliminary on-scene breath test, a prosecutor said Tuesday.

Clyde Watson Jr., 62, of Union, appeared briefly before Monroe County Magistrate Nancy Crews for a pre-trial hearing and was represented by Gap Mills lawyer Geoffrey Wilcher.

State Police charged the 14-year veteran school bus driver with DUI with minors in a vehicle after he crashed his school bus down a 120-foot ravine with 11 children aboard on Feb. 5.

School officials said Watson over-corrected his steering after running off the right side of the road and then slammed through a telephone pole before plunging down the ravine and finally coming to rest over a small creek. No children were injured in the accident.

County Prosecutor Rod Mohler told Crews a “plea agreement has been offered” to Watson which allows the defendant to plead guilty “as charged.”

“Based on Mr. Watson’s years of community service, the state will not object and would be willing to agree to the minimum sentence and fine,” Mohler said. “I think Mr. Watson wants to take some additional time to think over what has been offered and the state will not object.”

Two days after the accident, Watson apologized for his actions in a letter to the school board and also tendered his resignation. In the letter, Watson said he had “hit rock bottom” the morning of the accident and had “an ongoing alcohol problem.”

Mohler’s case against Watson was strengthened greatly after the defendant’s blood test showed a .093 BAC level nearly two hours after the accident.

A preliminary breath test at the scene indicated a relatively low level of alcohol, about .022. Preliminary tests cannot be used as evidence in a trial. However, a blood test can be used as evidence and Watson’s new BAC is higher than the state’s .08 legal limit. After a person’s BAC level reaches .08, a driver is “presumed to be impaired” under West Virginia law. A state CDL regulation requires drivers to be under .04.

Watson did not speak and quickly exited through the back door of the magistrate’s office with family members after the five-minute hearing.

Mohler called the new BAC reading “substantial” and said it puts to rest other issues that previously were raised concerning the accident. At the time of his arrest, Watson told police he had taken the cold medicine Nyquil, which contains alcohol, the night before the accident. Mohler had previously indicated the defendant may also have been diabetic.

“This also takes any health issues out of the picture as the cause of the accident,” Mohler told The Register-Herald after the hearing.

Crews tentatively scheduled another hearing in 30 days. If convicted, Watson faces two days to 12 months in jail and up to a $1,000 fine.

— E-mail: cgiggenbach@register-herald.com

March 26, 2008 Posted by | Children, DUI, Plea Agreements, Prosecutors, Vehicular Crimes | Leave a comment

Summersville Man Charged With 400 Counts of Sexual Assault

From the Beckley Register-Herald:

Man faces 400 counts of sexual assault

Register-Herald Reporter

Bond was set at $12 million for a Summersville man who is facing 400 counts of first-degree sexual assault by a parent, guardian or custodian.

Howard H. Neil, 70, of 147 Euclid Drive, was taken to Central Regional Jail following his arrest Monday.

A preliminary hearing is scheduled this morning in magistrate court, but Nicholas County Prosecutor Mark Hudnall said Thursday it was unlikely the hearing would proceed because Neil had not retained an attorney.

The alleged assaults occurred over the course of four years, 1998 to 2002, when the child was between the ages of 7 and 12.

Hudnall said the investigation is continuing.

Sheriff’s deputies arrested Neil on Monday because it was believed he posed a flight risk, Hudnall said.

The investigating officer Deputy Vicki Rains.

— Bill Billeter

March 21, 2008 Posted by | Children, Sex Crimes | 2 Comments