Last week I tried a four day jury trial in the Circuit Court of Monroe County, West Virginia, for a 98 year old lady named Isadora Beavers. On July 23, 2013, she walked into my office in her black and white polka dot dress, and hat, and demanded to see me. She told me that she had a power of attorney whom she suspected was stealing from her. She told me that her power of attorney was also the Vice President of her bank, and that she had been unable to get copies of her bank statements. That same day I helped her revoke the power of attorney and, at her request, demanded copies of ten years of her bank records from her bank.
Shortly afterwards she fell and was admitted into the hospital. I visited her in the hospital and told her what I had found in the past few years of her bank records – primarily lots of “cash” checks. I asked her if she spent much cash. She told me no, that she grew up in the Great Depression era and was thrifty with her money. She did admit that she indulged in getting a fancy haircut every once and awhile. And she liked to eat at Shoney’s. I told her that a deed existed giving her power of attorney joint ownership of all of her real estate, with a right of survivorship. She said, no, that property was supposed to go to her family after her death.
Not long after she began to decline pretty quickly. She started to suffer from dementia. Family members arrived in the area and petitioned the court to become her guardians and conservators, which was granted. They later contacted me and asked me to get the real estate back so they could finance the best possible medical care for Isadora. We demanded the return of the real estate. The response from the ex-power of attorney was that she would deed the property back, but wanted a release from liability in exchange for it. Not surprisingly, this offended pretty much all of Isadora’s relatives, and they gave me the go-ahead to sue her.
Last week, we presented the overwhelming evidence to the jury. They returned with a plaintiffs’ verdict on all counts: fraud, breach of fiduciary duty, conversion and unjust enrichment. They awarded $326,771.06 in damages against the defendant, Betty B. Brown. That included $175,000.00 of punitive damages.
In my closing argument, I asked the jury to send a message that financial abuse of the elderly will not be tolerated. I believe they sent that message loud and clear. By the way, all money collected is going to Isadora to fund her medical care and expenses. The defendant is going to be reasonable for paying all of our attorney fees and expenses as well.
In the courtroom with some of Isadora Beavers’ nieces and nephews immediately following the verdict:
Former Prosecuting Attorney of Pocahontas County Indicted. Update: Kanawha Prosecuting Attorney also charged and currently “embattled”.
I don’t usually post many news headlines anymore, unless they involve my cases. But, here goes.
The former prosecuting attorney of Pocahontas County, West Virginia, Donna Price, was just indicted. She joins another now-former elected prosecuting attorney in West Virginia in recent prosecutor indictments (Michael Sparks out of Mingo County). Prosecutors all over the state are probably loosening their collars.
Apparently she is being charged with embezzlement. I have no idea what actually happened, so I’ll just point out that she is innocent until proven guilty.
And I have posted about her before. In one of my most popular posts ever – from back in 2009 – Cops and Prosecutors Part Deux.
Just as a side note: the former assistant prosecuting attorney of Pocahontas County mentioned in the “Part Deux” post, J.L. Clifton, was also indicted last year, as per this article.
Edited to add: Also, if you didn’t get your fill of reading about West Virginia prosecutors who are being prosecuted, check out these articles about Kanawha County Prosecuting Attorney Mark Plants. Yes he is being prosecuted. No he won’t resign.
Maybe it’s time for Cops and Prosecutors Part III – 2014 Update.
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.
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.
Apparently a West Virginia lawyer was charged with being an accessory after-the-fact in relation to a New Year’s Eve shooting in Charleston, which is a felony. This was reported by WCHS, as well as the Charleston Gazette. Allegedly, after his friend shot a guy after an argument over ordering a pizza, the lawyer took the guy’s cell phone and instructed him to run. And then he was allegedly uncooperative with police when they asked him the identity of the shooter.
It was reported that all of this can be viewed on surveillance footage:
“Conrad is in trouble, because police said he can clearly be seen on surveillance video taking Underwood’s cell phone, which is considered evidence, from the scene and telling the suspect to run.”
So my initial thought is, how can you view what someone is saying on surveillance footage? You can’t. We pretty much know the footage does not contain audio – since that in itself would constitute felony illegal wiretapping in West Virginia, since it would be capturing conversations for which no party has consented.
The police are the first to complain about surveillance footage when they are accused of misconduct, noting that you can’t tell everything from the video. Well you certainly cannot tell what someone is saying to another. How does a video prove that the lawyer was instructing the shooter to flee? And if you can view the cell phone being handed to the lawyer, how can you tell that the lawyer asked for it. And if a cell phone is handed to you in such a situation, does that make you a felon? What if you are a lawyer potentially representing the individual. Can you preserve evidence yourself? Are you compelled to turn over your own evidence to police at their demand? The West Virginia Rules of Criminal Procedure don’t provide for that. In fact, a criminal defendant is not compelled to provide discovery to the prosecution until and unless he or she requests discovery from the State.
As with any of the decaying “cities” in this country where you have arrogant and hypocritical leadership, the City of Charleston was quick to jump into attention-whore mode and to engage in their first attempts at poisoning the jury pool:
“It’s really surprising that someone in a position of authority, and all that he is responsible for, to participate in this criminal conduct,” Lt. Steve Cooper, with Charleston police said.
. . .
Charleston Mayor Danny Jones said he plans to file an ethics complaint with the state bar, against Conrad.
What ever happened to “innocent until proven guilty”? Is it ethical for a police officer, or mayor, to go onto TV and tell the public that an individual who has been charged, and who is presumed innocent, has committed criminal conduct? Or that the individual has abused a position of authority? Or that the person is unethical?
I’m not passing judgment on the lawyer’s actions one way or the other since I don’t know all of the facts. After all, isn’t that what police say when one of their own are accused of misconduct? Well, it’s under investigation and we don’t know all of the facts. So what if he did take the guy’s cell phone and told him to run? What negative consequences did that have? Who is a victim to the lawyer’s alleged crime? None and nobody.
Well, I said I didn’t think I would be returning to Parkersburg. But wouldn’t you know it, I’m headed back over there. Here is yet another federal lawsuit filed by myself, and my co-counsel Paul Morrison, for yet another videotaped use of force out of Parkersburg, West Virginia. This is my fourth time there. This one was already in the news a few times. With the closure of the federal courthouse in Parkersburg, this case will be litigated out of the federal courthouse in Charleston. Maybe had we filed it a couple of days earlier . . . .
We settled the Seabolt v. Vensel, et al. case late last week. The settlement amount was $135,000.00.
Charleston Gazette on Saturday:
“I first became involved with civil rights issues in Parkersburg in June of 2010,” Bryan said after the settlement was reached. “With this settlement, I sincerely believe that these issues will not be coming up again. We’ve been through three years of federal court litigation, three six-figure settlements, two jury trials and two trips to the U.S. Fourth Circuit Court of Appeals.
“I’ve interacted with local leaders, police officers, citizens, local lawyers and Charleston defense lawyers, and I believe everyone is on the same page regarding Parkersburg’s future — which means that my time in Parkersburg has probably come to an end.
“Joshua Vensel is a good person who made one mistake. I uncovered no evidence of any prior acts of excessive force by him. In the end, he did right by Mr. Seabolt, and I have no doubt he will go on to lead a successful life. Lastly, I want to thank my co-counsel Michele Rusen and my opposing counsel Jim Muldoon for being great lawyers who are not afraid to do the right thing,” he said.
Parkersburg News and Sentinel:
Seabolt Settles in Lawsuit Against Parkersburg (also includes video of the incident)
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:
- 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