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?
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.
On the Use of Force Source, I just posted my write-up on a fairly recent Fourth Circuit case involving a homeowner who was shot by police while investigating a disturbance outside his home. If you’re interested:
I also recently posted a write-up on another recent Fourth Circuit opinion involving excessive force and bystander liability (e.g., where a group of officers allegedly beat someone and the victim doesn’t know who did what):
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.
For those of you who like to follow cases and not just read headlines about the allegations, I wanted to provide an update on the Matthew Cole case. It was recently settled, having just been finalized yesterday. It was originally filed in December 13, 2012. That is about average from filing to settlement/trial. It was scheduled to go to trial on March 13, 2014.
All discovery had been completed, including many depositions. And all dispositive motions, and pretrial motions, had been briefed. So anyone thinking that these are quick and easy cases to settle would be mistaken. Most of these cases (and this one was certainly no exception) are hard-fought and highly contested.
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:
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 . . . .
- 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