WV Civil Rights Lawyer

Police Misconduct, Civil Rights Law

“High Profile” Criminal Case = Poison in the Pool

“Bath Salts Arrests”

This was the headline, and accompanying photograph, seen after our recent hearing in the Mineral County, WV felony prosecution of John and Tonya Cozatt.  They are being prosecuted for several felonies for selling potpourri in their nutrition stores which allegedly contained “synthetic marijuana”.  The newspaper just couldn’t resist labeling the products as “Bath Salts”, which of course have been all over the national news due to incidents such as the face-eating incident in Florida.

The actual article makes it clear that the case has nothing to do with “bath salts”.  But if you look at the link I provided above under the photograph, you can see how they mentioned “Bath Salts” or “Salts” in three different areas surrounding the article.  It’s like the media labeling every gun, regardless of what it actually is, an “AK-47” or an “assault rifle.”  In the end, it poisons the jury pool.  In all of these pre-trial articles, people are seeing “bath salts, bath salts, bath salts.”  And in the national media they are seeing endless stories on people on bath salts doing crazy things.  Is it really necessary to sensationalize something that is innocuous as a nutrition store selling potpourri?  As the article notes, law enforcement had no idea the potpourri may have contained illegal compounds prior to having it analyzed by a laboratory:

Attorney John H. Bryan, representing the Cozatts, questioned Paterline about the packaging of the substance, noting that none of the packages said it was synthetic marijuana or meant to be smoked.

Bryan also asked Paterline if he could tell when he purchased the substances if they were illegal or not, and he said he could not.

April 10, 2013 Posted by | Drugs, Forensic Labs, John H. Bryan, Lawyers, Media Coverage, motions for change of venue, Police, Pretrial Hearings | 1 Comment

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.

September 5, 2008 Posted by | Drugs, Uncategorized | Leave a comment

Cop “Overdoses” on Marijuana Brownies

Thanks to Bobby Frederick to finding this video and story, which I had not seen before, about a Michigan police officer who took some pot he confiscated, and baked brownies and ate them with his wife. Then they called 911 to report an overdose, despite the fact that it is impossible to overdose on marijuana.

August 15, 2008 Posted by | Drugs, Police, Police Misconduct | Leave a comment

West Virginia Doctors in Bed With Pharmaceutical Firms

There was an editorial featured back in the July 9, 2008 issue of the Charleston Gazette, entitled “Payola,” which reported the staggering fact that 111 pharmaceutical firms were forced to disclose that they “showered” 14,933 “gifts, grants or payments” on West Virginia physicians during the last half of 2007 – with some “payola” exceeding $50,000. In other words, many, many, doctors in West Virginia are being paid by the drug companies to prescribe high-priced brands of prescription drugs to their patients – without regard to the patients’ health and financial situation. The kicker is that the patient has no idea that their doctor is doing this – nobody except for the drug companies and the state board of medicine does.

This was the first disclosure of this type revealed under new West Virginia state reporting rules. However, the catch is that the state board of medicine has made the decision to hide the names of these doctors. The Gazette’s editorial board was arguing that these names should be made public. And I agree. However, “state medical groups” complained, leading to the state board’s refusal to release the names.

And the lawyers get a bad rap in West Virginia? This article was forwarded to me by my father, who is a physician, and who was formerly President of the Florida Medical Association – though I didn’t ask him his opinion about it. I can’t imagine a doctor taking cash and gifts from these pharmaceutical firms to the impediment of his or her patients, much less openly arguing to the state that names should not be released. It sounds to me like the state medical association needs some new leadership – not to mention some common sense. Whatever happened to the hippocratic oath?

This has happened in Florida as well. Awhile back, a doctor was arrested in a nightclub while wearing a superman costume and belligerently harassing women with a sub (sandwich) in the lower portion of his costume. As it turned out, this doctor, among others, were in the process of being wined-and-dined by pharmaceutical firms (in exchange for them prescribing their drugs to patients).

While all of this is going on, we, as consumers, are being perpetually blitzed by pharmaceutical commercials. People forget, or fail to realize, that even 5 years ago there practically was zero direct advertising to consumers by pharmaceutical firms. I think that any ethical doctor, who is taking their oath sincerely, will agree that this is not in the best interests of patient health.

The point is, that this is one of the reasons why people go outside the state of West Virginia for serious health care needs. It’s not the lawyers – it’s the doctors. I support doctors as much as anybody, but there are bad one’s and good one’s, and it seems that some bad one’s are currently in charge. That needs to change. There absolutely is no good reason for the state to withhold the names of doctors who accept bribes from pharmaceutical companies.

– John H. Bryan, West Virginia Attorney.

July 30, 2008 Posted by | Conspiracy, Corruption, Drugs | Leave a comment

Judge Halts Trial Because Jurors Were Playing Sudoku

Although this was in Australia, what would any government expect when you make jurors sit for a trial for 66 days? What kind of crime is worth spending a million dollars to prosecute? Drug conspiracy? If as the prosecutor, you reach day 66 of your drug conspiracy trial, you have officially bored the hell out of the jurors – not to mention put them out of business and caused their families to lose their home in foreclosure. Who can afford two months of jury duty?

You can read the full article here.

– John H. Bryan, West Virginia Attorney.

June 10, 2008 Posted by | Drugs, Juries, Trials | Leave a comment

State’s Star Witness Testifies in Leftwich Murder Trial

From today’s Beckley Register-Herald:

Note: A couple of things stick out here: One, the victim officer and his fellow officer, Reynolds, both had been drinking according to the testimony at trial. Then they drove the murder scene where the victim attempted to make an undercover buy. Who was driving? The article didn’t say, but the obvious conclusion is that someone was drinking and driving. If Reynolds was the driver, then why wasn’t he investigated for DUI? I think we all know the answer to that. Had it been you or I, we would have been arrested.

Secondly, Dr. Iouri Boiko, who was at the time of the crime working for the State Medical Examiner’s Office (See my prior posts regarding this office here) testified that he believed that the victim’s .07 BAC level at the time of his death was that of a “practically sober person.” What a joke. Please, all WV DUI lawyers out there: at your next DUI trial subpoena Dr. Boiko as an expert witness, you know that you can at least get him to testify that a .07 is “practically sober.” The doctors from the State ME’s office are about the most untruthful and scandalous quacks ever to have an M.D. (or D.O.). The entire profession should be ashamed of these people who work for the people of the State of WV, but who scandalously slant their testimony so as to deny justice to those charged with crimes. I’m not defending the monster who committed this crime, just pointing out that our system is severely flawed. We absolutely must insert some neutrality into the State ME’s office and the State Forensic Lab.

Lastly, there needs to be accountability for the police. Is it good policy to have these undercover narcotics officers roaming around in police vehicles drinking, driving and making undercover buys with their girlfriends present? Does anyone see a problem with this? Having previously investigated pattern or practice police misconduct for the Department of Justice, it disturbs me that the Beckley PD didn’t turn the investigation of this incident over to the FBI, or at least the WV State Police. Once more, what sucks (for lack of a better term) for this guy, Leftwich, and for his co-hort who was already convicted, the judge is not allowing the defense to make an issue of these questions. If you are going to try someone for murder, at least let them have a shot at defending themselves. Again, I’m not defending either of these guys, but what if it was you, or your son or daughter, on trial? Believe it or not, innocent people do get charged with crimes – especially in West Virginia. – John H. Bryan, West Virginia Criminal Defense Attorney.

ACD5B8F9-0930-4133-BD22-8AC4C405FC12.jpg

Raleigh County chief deputy prosecutor Kristen Keller displays a photograph of the area where Beckley Police Detective Cpl. Chuck Smith was shot to death on Aug. 29, 2006. Cpl. Will Reynolds, left, was one of two witnesses.
Rick Barbero / The Register-Herald

“After I saw him take out his badge, my reaction was, ‘Something’s gone wrong’”

LEFTWICH MURDER TRIAL

By Michelle James
Register-Herald Reporter
A Beckley police officer who witnessed the shooting death of Detective Cpl. Chuck Smith testified Tuesday he sensed something was wrong just seconds before his friend and fellow officer was gunned down on a city street.

“After I saw him take out his badge, my reaction was, ‘Something’s gone wrong,’” Cpl. Will Reynolds said, continuing, “because there was no reason he would take his badge out.”

Reynolds testified on the second day of Thomas Leftwich’s murder trial. Leftwich is charged with first-degree murder, conspiracy and felony use of a firearm in the shooting death of the 29-year-old Smith in the early-morning hours of Aug. 29, 2006.

Leftwich, 25, is claiming self-defense. According to his attorney, Mark Hobbs, Leftwich was afraid he was about to be robbed and thought Smith might be reaching for a gun.

Reynolds recalled the hours leading up to Smith’s death. The two off-duty officers and close friends went out for dinner and visited a number of Beckley nightspots. It was at the last spot they visited, Pikeview Lounge, Reynolds said, where Smith was approached by a man who Reynolds would later learn was Timothy Blackburn.

“Chuck came over to me and told me we had to go,” Reynolds told the court, explaining Blackburn had planned to buy narcotics from Raushan McDougald, who was well known to narcotics officers as “Jellybread.”

Reynolds and Smith by that time had been joined by Smith’s then-girlfriend, Jasminda Gonzalez, who went along with the two officers.

“(We had) no plans of arresting ‘Jellybread,’” Reynolds testified. “We planned to observe the incident … and start an investigation.”

Reynolds told the court “Jellybread” was never located, adding the men instead encountered Michael Martin, who offered to help them purchase drugs. Martin was convicted of murder in December and sentenced to life in prison.

“He said, ‘Are you looking?’” Reynolds said of Martin, explaining that was street slang for drug dealers. “I said, ‘No,’ and Chuckie said, ‘Yes.’”

Shortly thereafter, Reynolds said, Martin led the three, in Smith’s police vehicle, a Jeep Grand Cherokee, to a parking lot at the corner of South Fayette Street and Willow Lane.

Reynolds said Smith walked with Martin across Willow Lane to the foot of a stairwell leading up to a house on top of a hill, now known to be the Leftwich residence.

“Chuckie looks at me and says, ‘I’m in, I’m out,’” Reynolds recalled, explaining those words confirmed there would be only a transaction but no arrest.

As Smith and Martin stood at the base of the steps, looking up at an individual later identified as Leftwich, Reynolds heard what he called a “brief confrontation of words,” saw Smith reach into his pocket and show Leftwich his badge. He then heard “the first shot.”

After the shots were fired and both Martin and the gunman fled, Reynolds moved Smith across the street in an attempt to get him to safety, he said. He also moved the vehicle to use as a shield.

Reynolds testified he checked Smith to see what kind of wounds the officer had received.

“I check his heartbeat and his heart is beating really fast and it just stops,” an emotional Reynolds recalled. “I felt a warm substance running down my leg in my shoe.”

“Blood,” Reynolds responded when asked by chief deputy prosecutor Kristen Keller what that substance was.

Leftwich’s attorney, Mark Hobbs, questioned Reynolds as to how much alcohol he, Smith and Gonzalez had consumed, and why Gonzalez was with them.

Reynolds testified he consumed beer, but said he did not believe any of the three was intoxicated. He said he saw Smith consume only a small mixed drink with dinner.

Dr. Iouri Boiko, who at the time of Smith’s death worked with the state medical examiner’s office, told the court that of the four bullet wounds Smith received, the most damaging was to his left chest, which perforated both lungs and damaged his heart.

Responding to Hobbs’ inquiry of Smith’s .07 blood alcohol level at the time of his death, Boiko said he believed that BAC level was that of “practically a sober person.”

Dr. Michael Kelly, chairman of emergency services at Raleigh General Hospital, told the court the first EMS record after Smith was shot was at 4:32 a.m. and reported no cardiac activity, no blood pressure and indicated Smith was not breathing. Kelly said Smith arrived at the hospital about 15 minutes later and was pronounced dead at 4:56 a.m.

Raleigh County Sheriff’s Detective Cpl. J.C. Canaday and State Police Sgt. Craig Light testified regarding two search warrants obtained for the Leftwich residence in the hours after Smith’s death.

Based on information from Reynolds that the gunman had come from the house on the hill and had vanished in the same direction, Leftwich’s residence was searched.

During the first search, Canaday said, residents were removed from the home and Thomas Leftwich approached him, confessed he had shot Smith and showed him where he had hid the weapon.

Canaday read a list of items recovered from the residence during the two searches, including shirts, a cell phone, guns, ammunition, counterfeit bills and a bullet-ridden target of a police officer.

Matthew White, a firearm and toolmark examiner, testified the bullets that struck Smith came from Leftwich’s Smith & Wesson .357.

State Police Senior Trooper R.A. Daniel testified regarding “background” checks done on 19 weapons seized from the Leftwich residence.

Daniel said the murder weapon and two other weapons had been reported stolen. Two weapons, he said, were sold to Leftwich, and it was not determined if the others had been stolen.

Hobbs countered that person-to-person sales are not always noted and Daniel had no evidence proving the other weapons had been stolen.

The trial continues at 9 a.m. today.

— E-mail: mjames@register-herald.com

March 12, 2008 Posted by | Drugs, Evidence, Judges, Medical Examiners, Murder, Police, Trials | Leave a comment

Federal Courts in WV Releasing Inmates With Crack Convictions

From the Charleston Daily Mail:

Courts begin freeing inmates under new sentencing rules

by The Associated Press

Federal courts in West Virginia have started releasing some inmates who are eligible for reduced sentences under new guidelines for crack cocaine convictions.

At least 28 inmates have been freed since the new sentencing guidelines went into effect March 3.

“I think it’s running more smoothly than anybody initially thought it was going to,” said federal Public Defender Mary Lou Newberger in Charleston. “The most important thing is, it’s not that everybody is being (released) at one time. There are people who are having their sentences reduced who won’t get out until next year or later. It’s a rolling process.”

The U.S. Sentencing Commission voted unanimously in December to ease its sentencing guidelines to reduce the disparity in prison time for crack cocaine and powder cocaine. For example, a defendant caught with 500 grams of powder cocaine previously faced the same penalty — a mandatory five-year prison sentence — as one caught with 5 grams of crack cocaine.

In West Virginia, about 490 inmates in the southern district and 617 inmates in the northern district are eligible for reduced sentences, court officials said.

U.S. Attorney Sharon Potter said 28 inmates in the northern district were freed on March 3.

But shorter sentences are not automatic for every inmate who seeks one, Potter said.

“For example, if other drugs were involved in a conviction or if a firearm was involved, this reduction may not impact the original sentence whatsoever,” Potter said “Further, if a defendant was found to be a career offender, meaning his or her criminal history warranted a higher guideline sentence, this reduction would have no impact on the case.”

Potter said a defendant’s conduct while in prison also is a factor that is considered.

In the southern district, the judges issued an order Feb. 6 establishing a standard procedure for addressing such cases. Each eligible inmate’s case is reviewed by probation officers, federal prosecutors and a judge before a sentence is reduced.

Chief U.S. District Judge Joseph R. Goodwin said the procedure includes safeguards to ensure that an inmate who poses an immediate threat is not released.

“It would be naive to assume that all people getting out of prison will never again commit a crime,” he said. “But we have to keep in mind that all of these people will get out at the end of their sentences. The determination we’re making here is simply one which we hope is informed as to whether their sentence should conform to others eligible for this reduction.”

March 11, 2008 Posted by | Drugs, Sentencing | 2 Comments