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:
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?
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.
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.
On November 26, the West Virginia Supreme Court of Appeals issued a decision in a suit filed by the Charleston Gazette (which I posted about back in November of 2010), to enforce a FOIA request initially sent by former Gazette police misconduct reporter Gary Harki. After the circuit court refused to allow the internal files to be produced, the Gazette appealed and ended up winning at the Supreme Court.
The opinion is available in .pdf format on the Court’s website here.
Essentially the Court ruled that state police internal investigation documents are subject to production through FOIA requests, so long as the investigation has been concluded, and the allegations involve official misconduct about which the public has a right to know. I’m summarizing.
This holding did not specifically address political subdivisions, i.e., counties and municipalities. However, I don’t see any legitimate reason for treating them differently under this case law.
On the filing of the lawsuit:
Prior to the filing of the lawsuit:
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.
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)
- 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