WV Civil Rights Lawyer

Police Misconduct, Civil Rights Law

What kind of paperwork is generated during 40 years of wrongful imprisonment?

This is it.  This is the paperwork generated by the justice system during 40 years of wrongful imprisonment.

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People assume that people convicted of murder get a large amount of appeals, and have judges looking over their case to make sure everything was constitutional and fair . . . .  Nope.  This folder contains no actual direct appeal of James McClurkin’s murder conviction.

His lawyer who represented him during the 1977 trial which convicted him dropped the ball completely.  He filed the notice of intent to appeal, but never actually followed through.  Apparently he was waiting on payment from Mr. McClurkin’s family prior to filing the appeal.  However, James’ father, who had hired him initially, passed away two weeks prior to the trial, and had spent all he had on James’ trial.  The result was that Mr. McClurkin did not receive a direct appeal for his murder conviction.  The State of South Carolina filed a motion to dismiss the notice of intent to appeal based on the failure to take any action beyond filing the notice.  So the “appeal” was dismissed forever.  What followed is paperwork which mostly discusses legal technicalities such as failure to comply with deadlines, and the discussion of rules which forbid inmates from bringing up old issues.  It doesn’t appear that Mr. McClurkin ever had the assistance of a lawyer at all up until 1992, when the real murderer confessed.  Every document James filed throughout his incarceration always mentioned first that James had exhausted his appeals.  Well, he never got an appeal, and it is a fiction – a lie – that he exhausted his appeals.

The notoriously racist trial judge, Judge Moss, who in 1985 created “controversy” by using the “N word” from the bench (in response to black protestors following the conviction of a black man accused of shooting a white man – ironically similar to James’ conviction).   Here is an article I tracked down from January 28, 1985, as it appeared in the South Carolina Herald-Journal.

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This file contains almost no discussion of the evidence upon which James’ murder conviction stands.  At one point, a lawyer for the South Carolina Appellate Public Defender’s Office filed a motion to withdraw from representing James due to the case being “without merit.” He didn’t bother to mention the evidence from the 1970’s, or the lack thereof.  He didn’t even look into the 1992 confession and testimony of the real murderer.  This was 2004.  James would spend another 12 years in prison.

This should be a real wake-up call.

July 6, 2018 Posted by | Civil Liability, Evidence, Governmental Liability, Judges, Judicial Misconduct, Lawsuits, Lawyers, McClurkin Case, Media Coverage, Murder, Police Misconduct, Prosecutors, Trials, Wrongful Imprisonment | Leave a comment

Our new mission: South Carolina man wrongfully imprisoned for murder from 1977 through 2016

We are pleased to have been hired to represent a man named James McClurkin.  James was convicted of murder in 1977.  In late 2016, law enforcement appeared at his parole hearing and testified that the old murder case was reopened, and that James was innocent.  James was released.  He was 63 years old, and had been in South Carolina prisons since the age of 18.

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South Carolina is one of the states which does not provide compensation to innocent people who are wrongfully imprisoned and then later exonerated.  Hopefully that legislation can soon be enacted in South Carolina.  But until that happens, we are working hard to compensate Mr. McClurkin for the terrible injustice which occurred in his case.

Here are some of the media accounts of his release from prison:

Chester man paroled after 39 years for crime he denies. Were wrong men convicted?

Judge says Chester men must go to S.C. Supreme Court to seek exoneration for murder

‘I am free’: Chester man in prison 43 years goes home, still hoping to be exonerated

‘The air. It smells different. Like freedom.’ Man freed after 39 years in prison for murder police now say he didn’t commit

The sheriff said he didn’t do it and he was released from prison but stigma impossible to shake.

James McClurkin and his co-defendant were convicted of the 1973 murder of laundromat attendant Claude Killian.  James, and his co-defendant Ray Charles Degraffenreid, both African Americans, were convicted under the brutal 1970’s Chester County, South Carolina justice system, which involved, among other things, a presiding trial judge who was known for using the “N word” while on the bench.

The real murderer actually confessed in 1992, which was corroborated by the fact that he was convicted of a similar murder, and by the fact that he had no alibi on the night of the murder.  However, the justice system once again failed James, and he was sent back to prison for another 25 years. Now law enforcement reopened the case, and have concluded that the real murderer was telling the truth.  How did this occur?  Well, among other issues, the mother of the real murderer was apparently the maid of the prosecutor who prosecuted James and Ray Degraffenreid.

This sounds like a novel, but it’s not.  It’s real, and it was only uncovered because a courageous new sheriff was willing to give someone the benefit of the doubt, and double check an old case.  Follow along as we jump into this case and work to reverse the wheels of justice.

IF YOU LIVE IN SOUTH CAROLINA, PLEASE CONTACT YOUR POLITICIANS AND EXPRESS YOUR SUPPORT IN PLACING THESE CASES BEFORE THE GOVERNOR OF SOUTH CAROLINA.  BOTH JAMES MCCLURKIN AND RAY CHARLES DEGRAFFENREID SHOULD BE PARDONED BY THE GOVERNOR OF SOUTH CAROLINA.

You can donate in order to assist with James McClurkin’s living expenses through the following site:

https://www.youcaring.com/jamesmcclurkin-815274

June 22, 2018 Posted by | Civil Liability, Corruption, John H. Bryan, Judges, Judicial Misconduct, Lawsuits, Lawyers, Legislation, McClurkin Case, Media Coverage, Murder, Police, Police Misconduct, Prosecutors, Trials, Wrongful Imprisonment | Leave a comment

Update, and some additional thoughts, on prosecutor mess in Kanawha County

Today there was an article in the Charleston Gazette about the Mark Plants mess in Kanawha County.

On Wednesday, Judge Duke Bloom barred Prosecutor Mark Plants’ office from handling cases involving child abuse and neglect, violent crimes against children by their parent, guardian or custodian and criminal violations of protective orders . . . .

The ruling is in response to a petition from the city of Charleston asking that Plants be disqualified from hearing cases brought by the Charleston Police Department.

Lawyers with the state Office of Disciplinary Counsel filed a petition with the state Supreme Court asking that Plants be immediately suspended or disqualified from prosecuting domestic-violence cases involving parents and minor children. The ODC’s petition said Plants’ belief that the allegations against him aren’t a crime creates a conflict of interest for his office. The Supreme Court has scheduled a hearing on the matter for May 5.

So you have a city applying to a judge to disqualify the elected prosecutor from hearing certain cases, based on pending criminal charges.  Domestic violence accusations pop up from time to time in the personal lives of police officers.  The MO, in my experience, is that they are disarmed and given a desk job until the situation is resolved.  I wonder if the employer, e.g., the City of XYZ, has ever sought to protect the rights of the alleged victims/accusers in domestic violence cases where the investigating officers have had their own history of accusations?  And do they have standing to even have a say in the matter?  After all, the county prosecutor is a position elected by the citizens of the county.  Also, what about all the people who have previously been prosecuted for these types of crimes by Mr. Plants, or his office?  Do they now have some right to have their case reopened, or thrown out?

April 25, 2014 Posted by | Domestic Violence, Judges, Media Coverage, Police, Prosecutors | Leave a comment

New Summary of the Sawyer v. Asbury Opinion

I just went back through the Sawyer v. Asbury opinion in this post on the Use of Force Source.  If you have followed the case on this blog, it’s interesting to take a step back and analyze the Court’s ruling as it finds its place in Fourth Circuit excessive force case law.

April 9, 2014 Posted by | Civil Liability, Excessive Force, Governmental Liability, John H. Bryan, Judges, Juries, Lawsuits, Lawyers, Police, Police Misconduct, Trials | Leave a comment

Federal Courthouse in Parkersburg Closing

This is my 300th post, and unfortunately a sad one.

I was disappointed to see in the Charleston Gazette this morning that the federal courthouse in Parkersburg, West Virginia is closing up shop.  I think I tried the last jury trial ever in that courthouse, which was the first trial there in around three years, if I recall correctly.  The article says something to the effect that it couldn’t keep up with modern technology.  Actually, we used all the modern technology which you would expect in a modern-day jury trial, including “ELMO” machines and video footage.  They did have to bring the devices from Charleston for the trial – which was not a big deal.

One piece of modern technology which didn’t work there however, was the mute button on Judge Goodwin’s microphone.  So he told the jurors to loudly talk amongst themselves whenever he said “beep” so that we could have side bar conferences.  It worked amazingly well – in fact probably much better than a mute button.  And everyone got a kick out of it.

The last day is this Friday.  R.I.P. Parkersburg Federal Courthouse.

November 20, 2013 Posted by | John H. Bryan, Judges, Juries, Media Coverage, Trials | Leave a comment

Sawyer Case Media Reports

There was a nice article on the front page of the Charleston Gazette this morning about the Sawyer Case.

Ruling Against Wood Deputy in Assault Stands

“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:

Asbury Judgment Upheld on Appeal

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:

Fourth Circuit Affirms Goodwin’s Ruling in Wood County Civil Rights Case

August 14, 2013 Posted by | Appeals, Civil Liability, Excessive Force, Governmental Liability, John H. Bryan, Judges, Lawsuits, Lawyers, Media Coverage, Police, Police Misconduct, Trials | Leave a comment

Victory at the Fourth Circuit

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.

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Our Brief:

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August 13, 2013 Posted by | Appeals, Civil Liability, Excessive Force, Governmental Liability, John H. Bryan, Judges, Lawsuits, Lawyers, Police, Police Misconduct, Trials | Leave a comment

WV Supreme Court Justices “give attorney tough time during arguments”

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.

March 6, 2013 Posted by | Appeals, John H. Bryan, Judges, Media Coverage | Leave a comment

Interesting criminal cases dismissed before trial

I had a felony criminal case going to trial tomorrow.  But, an unusual thing happened.  The judge dismissed the cases on Friday by granting my motion to dismiss.  This is an interesting case, in a macabre way.

My client, who was an EMT, was alleged to have taken a photograph of a deceased body – a suicide victim.  That photograph was alleged to have been text messaged to his wife – another EMT.  Additionally, the photograph was alleged to have been shown to other individuals.  When authorities found out about these allegations, they wanted to prosecute.  But there was a problem: in West Virginia it is not against the law to take photographs of deceased bodies.  So here were the charges:

W. Va. Code § 61-8-14 provides:

If any person unlawfully disinter or displace a dead human body, or any part of a dead human body, which shall have been placed or deposited in any vault, mausoleum, or any temporary or permanent burial place . . .  he shall be guilty of a felony, and, upon conviction, shall be confined in a state correctional facility for a determinate sentence of not more than five years.

 Here were the state’s allegations as contained in the indictment:

The grand jurors of the State of West Virginia, in and for the body of the county of Greenbrier, upon their oaths present that, on or about April 20, 2012, in the said county of Greenbrier, CLIENT feloniously, unlawfully and intentionally disinterred or displaced a dead human body, or any part of a dead human body, placed or deposited in any vault, mausoleum or any temporary or permanent burial place.  More specifically, on or about April 20, 2012, in Greenbrier County, West Virginia, CLIENT, while working as a driver for the Funeral Home, transported the deceased body of VICTIM from Appalachian Regional Hospital in Summers County, West Virginia, to the Funeral Home in Monroe County, West Virginia.  Furthermore, on said date, CLIENT, while en route as indicated above, removed the Identification Tag.   Such act was against the peace and dignity of the State of West Virginia and is a violation of West Virginia Code § 61-8-14.

They also charged felony conspiracy to disinter, both against the client and his wife.

The obvious problem with the indictment was that, according to the statute, it did not allege a crime.  We all know that the act being prosecuted is the taking of the photograph.  However, in an act of legal acrobatics, they are technically prosecuting for the alleged removal of a body tag.  We filed several motions to dismiss, and the motions were set for an evidentiary hearing.  We subpoenaed the investigating officer, as well as the funeral home embalmer to testify.

The investigating officer testified that the embalmer told him that upon arrival at the funeral home, he observed the body still inside the client’s vehicle, and that the body tag was laying loosely on top of the body bag.  However, the embalmer was the next witness.  He testified that he never observed the body while it was still inside the vehicle, and that he had no recollection of the location of the body tag.  Furthermore, he said that it was in the client’s job description to assist him by transporting the body inside the embalming room, and to remove the body bag, clothing, and the body tag itself (the removal of which the state was arguing was a felony offense).  This is, of course, performed by first responders, as well as funeral home employees every day across the state, and it would be unfortunate to make them all felons.

The only West Virginia case law on the “disinterment” statute was State v. Duncan, and it involved a woman who dug up a murder victim from a shallow grave for the purpose of planting the body in a river so that it could be discovered by authorities.  Apparently she had dumped the victim’s vehicle in the river, and then realized that if the body was not discovered it would look suspicious.  So she was going to dump the body in the river so that it could be found.  She apparently gave no thought to whether or not the bullet hole in the victim’s head would be at odds with her drowning set-up.  Anyways, she was charged with “disinterment” since she was not the actual murderer.  The WV Supreme Court held that the removal of a body from a shallow grave did qualify as a temporary or permanent burial due tot he fact that the body is actually covered with dirt, etc.  The decision left no wiggle room for a prosecutor to argue that a body bag also qualifies as a temporary place of burial.

The Judge in our case discussed this case, and also discussed the fact that only next of kin have the right to “bury” somebody, and that transportation from the coroner’s office to the funeral home in a body bag, by non-family members cannot be considered “burial”.  And criminal statutes are to be strictly construed.  The word “burial”, at least in the dictionary, means “grave” or “tomb”.  Therefore, a body bag, just isn’t a temporary place of burial – even where there is an unpopular defendant and public outcry for punishment.  Even though I love to try jury trials, there is no better result than avoiding the possibility of conviction altogether with an outright dismissal of the case.

January 21, 2013 Posted by | John H. Bryan, Judges, Pretrial Hearings, Trials | 1 Comment

Judgment as a matter of law was just granted in Sawyer 1983 case

Unfortunately we lost at jury trial.  But we just received an order from the Federal Judge overturning the jury verdict and granting judgment in our favor.  There will be a new trial to determine damages.  Yes!

Update: Link to newspaper article.

2nd Update: Gazette article by Zac Taylor.  Some excerpts:

In his order filed Friday afternoon, Goodwin recalled the Los Angeles riots in 1991, sparked after a jury acquitted Los Angeles police officers in the beating of Rodney King despite video footage of the incident.

“The public had seen the tape. The Los Angeles riots ensued,” Goodwin wrote in the order. “Here and now, as there and then, the jury did what they thought was right but simply got it wrong.”

The judge said that law enforcement officers are constitutionally prohibited from inflicting “unnecessary and wanton pain and suffering” on detainees. He said that case law also prohibits officers from using physical force in response to chatter from detainees.

. . .

“The video clearly shows Deputy Asbury punching Mr. Sawyer in the face,” Goodwin wrote, “with the force of his blow knocking Mr. Sawyer’s face to the side.”

. . .

Asbury resumed choking Sawyer. The deputies then took Sawyer to the floor, went out of view for the camera for a short period before returning, and leaving the man on the floor, Goodwin said.

Sawyer stayed on the floor while the officers apparently went on with other tasks, Goodwin said. After a while, Sawyer managed to sit up. He was later taken to the hospital with a fractured nose.

 . . .

During the trial, Sawyer’s lawyer, John H. Bryan, asked the judge to make a ruling on the case based on the video. Goodwin said that he had “grave concerns” that the testimony of the officers involved contradicted the footage.

“I said in response to the motion that I was reminded of the Marx Brothers’ ‘Duck Soup’ movie, in which the heiress confronts Chico Marx dressed as Groucho and says ‘I saw’, and he replies ‘Who are you going to believe, me or your own eyes?’ ” the judge wrote.

TV News article.

The Order:

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May 18, 2012 Posted by | Civil Liability, Governmental Liability, John H. Bryan, Judges, Juries, Lawsuits, Lawyers, Media Coverage, Police, Police Misconduct, Trials | 1 Comment