WV Civil Rights Lawyer

Police Misconduct, Civil Rights Law

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.

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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

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.

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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

Defense Motions Denied in Leftwich Murder Case

From the Beckley Register-Herald:

Note: In the article below, I bolded a quote from Judge Kirkpatrick that immediately stood out to me. He says that the previous blood-alcohol testing that was done for the prosecution was done by the State Medical Examiner’s Office, not by an expert chosen by the prosecution. Well, if you have read any of my prior posts regarding our State Medical Examiner’s office, you would know that the prosecution couldn’t hire a better expert for their side if they had unlimited funds to do so. Being that many things in our state are backwards, the State ME’s Office and the State Crime Lab are basically appendages of the police and prosecutors. When they testify at trial they are trained to slant the evidence and their testimony towards the prosecutors. They are hired guns basically. If anyone contests this, then I will be glad to give examples. The end result is that none of their conclusions can really be trusted without independent testing and independent experts looking over their shoulders. Just “google” the WV State Crime Lab and you will find examples of what I am talking about. – John H. Bryan, West Virginia Criminal Defense Attorney.

Leftwich loses bid to suppress evidence

Michelle James
Register-Herald Reporter

A Raleigh County judge Wednesday denied a motion from Thomas Leftwich requesting suppression of a search warrant and the evidence it allowed officers to obtain from the accused police killer’s South Fayette Street home.

Leftwich, charged with first-degree murder and conspiracy in the shooting death of Beckley Police Detective Cpl. Chuck Smith, is scheduled to go to trial March 10.

Defense attorney Mark Hobbs questioned the probable cause for the warrant, the second issued in the hours after Smith’s Aug. 29, 2006, death. That warrant led to the seizure of a numerous items, including a variety of weapons, ammunition, drugs, videotapes and computers.

Raleigh Sheriff’s Detective Cpl. James Canaday, who signed the affidavit for the warrant, and State Police Sgt. Craig Light, who carried out the search, testified as to probable cause during a pre-trial hearing Wednesday.

The officers told the court that items seen while carrying out the first search warrant led them to obtain a second warrant.

Circuit Judge H.L. Kirkpatrick denied Hobbs’ motion for suppression, telling him there was probable cause for the second search warrant and adding a second warrant was not actually needed and the officers were simply exercising “extreme restraint and caution.”

Kirkpatrick also issued a pre-trail order intended to determine “pending motions, as well as establish parameters of inquiry of witnesses and remarks of counsel.”

Through the order, Kirkpatrick denied Hobbs’ Feb. 21 motion to be supplied with a sample of Smith’s blood in order for the defense to perform its own testing to determine Smith’s blood-alcohol level at the time of his death.

The order mentioned chief deputy prosecutor Kristen Keller’s assertion that the “BAC of the victim is entirely irrelevant when a defendant claims self-defense.” Also, Kirkpatrick pointed out the previous blood test had been completed by the state medical examiner’s office, not an expert of the state’s choosing.

Kirkpatrick also denied Hobbs’ request to enter as evidence the City of Beckley’s general policy manual for police officers. In the order, Kirkpatrick stated there was no written guideline for policy and procedures for undercover operations and said a general policy manual would have no relevancy.

Also, because speculation became a problem during the trial of Leftwich’s co-defendant, Michael Martin, the order prohibits “sheer speculation concerning supposed motives attributable to the victim.”

Martin was found guilty of first-degree murder and sentenced to life without parole.

The order also states the court will not allow the victim’s character to be “trashed.”

Kirkpatrick’s order permits the defense to inquire about and address testimony pertaining to all activities and events surrounding the shooting.

February 28, 2008 Posted by | Judges, Medical Examiners, Murder, Police, Prosecutors, Self Defense, Trials | Leave a comment

WV Makes National Headlines for Mistake in Medical Examiner’s Office

From the Associated Press and found at FoxNews.Com:

Note: The state medical examiners in West Virginia, who are state employees, make mistakes like anyone else. However, the only time they will ever admit it is when they are caught red-handed. If you ever have the pleasure of having one of them testify against you in a trial, you will see that they put neutrality and science aside and concentrate on achieving the objectives of the State of West Virginia – be it for prosecutors or the State Police. Don’t let them fool you, their ultimate goal is not the truth, it is conviction. – John H. Bryan, West Virginia criminal defense attorney.

Wrong Body Accidentally Buried in W.Va. After Coroner Confuses Fire Victims

CHARLESTON, W.Va. —

Authorities mistakenly released the body of an adult woman to the family of a 2-year-old fire victim, and the woman’s body was buried in the girl’s grave, officials said.
A routine office check at the state Medical Examiner’s Office earlier this week showed that the body of Victoria Hope Starcher of Cottageville was still there. The child and her brother, 4-year-old Joseph Allen Starcher II, were both killed Feb. 8 when their two-story house caught fire.

Funeral services for the children were held Feb. 15 in Jackson County, said John Law, spokesman for the state Department of Health and Human Resources.

Law said the employee who mistakenly released the woman’s body probably failed to check a label on the body bag against information identifying the remains. The woman, who has not been identified, also was a fire victim who was killed in a different blaze.

Officials are investigating and disciplinary action could be taken if any wrongdoing is found, Law said.

Dr. James Kaplan, the state’s chief medical examiner, and state Bureau of Public Health acting chief Ron Forren informed the girl’s parents, Joseph Starcher and Tammy Scarberry, of the mistake Tuesday.

“I understand that they were extremely upset as can be expected, but they were also very impressed that Dr. Kaplan took the time to personally drive to Jackson County and explain to them what happened,” Law said Wednesday. “They assured the family that DHHR would assume all the cost of exhuming the body, getting the right body to them and doing whatever we have to do to make it right.”

There were no telephone listings for Starcher or Scarberry in the Cottageville area.

Law said the woman’s body will be exhumed after a circuit judge issues an order, which is required for exhumations.

February 22, 2008 Posted by | Evidence, Medical Examiners | Leave a comment