WV Civil Rights Lawyer

Police Misconduct, Civil Rights Law

Search and Seizure Case From Berkeley County In The News

Last week we filed a lawsuit in federal court on behalf of John W. Orem and his wife.  The Complaint alleges three civil rights violations: an illegal search, an illegal arrest, and an illegal violation of the right to privacy.

Former Berkeley County sheriff candidate sues state police

Former Berkeley Co. sheriff candidate sues police over drug arrest

Former Berkeley County Sheriff candidate files civil lawsuit against police

In the lawsuit, John Orem and his wife, Sher Orem, claim Trooper Matthew D. Gillmore, on Aug. 2, 2016, conducted an unreasonable search and seizure at their home in violation of the Fourth Amendment.

The civil suit requests the court to award damages against the defendants in an amount to be determined at a trial by jury for past, present and future medical expenses; past, present and future pain and suffering; loss of enjoyment of life; psychological and emotional distress; reasonable attorney fees and costs, as well as other compensatory and punitive damages.

John Orem told The Journal Tuesday that he did not want this to go this way.

“I made a complaint with (West Virginia State Police) and tried to get them to handle the issue within their department,” Orem said in an emailed statement. “Then after a year and never sending anyone out to look into the issue or speak to anyone, they said they see nothing wrong.

“So although all officers are human and make mistakes, I believe that we need to trust our law enforcement to self-police and correct errors. If they can’t do that, they force us to sue. Since the (West Virginia State Police) have immunity to civil suits, this is the only way to have them correct issues and help them to provide a better service to our community.”

Copy of the Complaint

This is the photo which was uploaded to social media, while Mr. Orem was still sitting handcuffed inside the Martinsburg state police detachment.  We allege this was taken and uploaded by employees of the West Virginia State Police in order to destroy Mr. Orem’s reputation and political campaign.

IMG_5936 (002)

The strategy worked well.  The arrest quickly made national headlines.

A few examples:

Sheriff’s candidate in West Virginia charged in heroin case – CBS News

Candidate For Sheriff In West Virginia Charged With Heroin Possession Authorities said they found John Orem unresponsive in his home. – Huffington Post

Mr. Orem was kept sitting on the bench for several hours prior to his arraignment – even though a magistrate was available to arraign him.  The Complaint alleges the delay was due to the fact that the State Police contacted the media, in order to be sure they were waiting with cameras to catch Mr. Orem being perp-walked into the courthouse, with the arresting officer proudly displaying his catch.  Here is a photo of the next morning’s newspaper:


After both the prosecutor and the defense attorneys agreed that the arresting officer had performed an illegal search, and asked the court to dismiss the charge against Mr. Orem, this arresting officer wrote a letter to the court objecting to the dismissal.  The court ignored the letter and dismissed the charge.

April 11, 2018 Posted by | Civil Liability, Elections, Governmental Liability, Lawsuits, Media Coverage, Police, Police Misconduct, Prosecutors, Searches and Seizures, State Agencies | 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

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.

Local News Story Link.

Link to a copy of the Indictment.

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.

Kanawha Prosecutor Arrested.

Some Worry Kanawha County Prosecutor Has Lost Credibility.

New Questions Surrounding Ethics of Mark Plants.

Kanawha Prosecutor Defies Calls to Resign.


Maybe it’s time for Cops and Prosecutors Part III – 2014 Update.

April 14, 2014 Posted by | Corruption, Embezzlement, Lawyers, Media Coverage, Prosecutors, White Collar Crime | Leave a comment

News coverage of high-profile criminal cases continues to disappoint

I have posted before about the danger that ignorant media coverage poses to criminal cases – especially TV news coverage.  The reporting is just awful.  One particular local channel brags that they are helping law enforcement clean up the criminals out of our community.  In reality, they are just posting mugshots and reading law enforcement press releases.

I was in court yesterday for a pretrial hearing in a high profile southern WV case.  Up to that point, the media had not appeared at the prior court hearings – most likely because they didn’t know about them.  Somebody had apparently tipped them off about the hearing taking place.  Some prosecutors, when they realize that their plea offer is not going to be accepted and that they are going to have to try the case, will get the media involved which effectively poisons the jury pool.

The TV news crew filmed the hearing, obviously taking careful notes about what was being said (I say that sarcastically).  Instead of broadcasting the audio from the hearing, they substituted their reporter’s voice, which was completely misstating the substance of the hearing.  Then, as my client and I were leaving the courtroom, they ambushed us putting cameras and microphones in our faces.  The reporter asked, “what do you want to tell the victim’s family?”

The funny thing about this is that 30 minutes earlier we were all quietly sitting in the courtroom, along with other attorneys and defendants, waiting for the judge to appear.  They had every opportunity to film my client at that time.  They had every opportunity to request an interview or a statement, or whatever.  They had every opportunity to ask questions about where the case was heading.  I’m not saying they would have gotten any information from us, but they made no attempt.  They are obviously not interested in the facts, just sensationalism.

August 23, 2011 Posted by | John H. Bryan, Media Coverage, Pretrial Hearings, Prosecutors | Leave a comment

Two more thoughts of the day: 1) Without video proof, police misconduct didn’t occur; 2) Sex offender registration mania is out of control

It blows my mind that this is on video, but it is.  A scumball cop in Ohio abused his authority and violated the civil rights of an innocent citizen.  He basically threatened to execute the guy, etc.  Of course the poor guy is then prosecuted for “failure to notify” that he had a concealed weapon permit and was carrying.  I heard through the grapevine that in the criminal prosecution which ensued (of the victim of course – not the cop) the prosecutor offered to dismiss the charges if the victim/defendant signed a release of liability foreclosing any possibility of a lawsuit over civil rights violations.  If this is true (and I have no proof that it is), the prosecutor should be prosecuted for attempting to cover up a crime.  I just found this statement from the police chief in that jurisdiction:

I want to assure our citizens that the behavior, as demonstrated in this video, is wholly unacceptable and in complete contradiction to the professional standards we demand of our officers. As such, appropriate steps were placed in motion as dictated by our standards, policies and contractual obligations. Those steps included: The officer immediately being relieved of all duty. The incident has been referred to the Internal Affairs Bureau for what will be a complete and thorough investigation. As bad as the video indicates our officer’s actions were, there is a due process procedure to follow. That process is designed in the best interest of both our employees and the citizens at large. That process will be followed in this case as in all others. Anyone shown to be in violation of our rules and regulations will be help appropriately responsible as dictated by all the facts. ~Chief Dean McKimm

The 800 pound gorilla in the room is this: if the video did not exist, nobody would believe the victim.  And it blows my mind that the video was recovered.  By the way, if you watch the video, take note of the illegal search of the backseat of the car which happens almost immediately after the stop.  This sort of garbage happens all the time.  After the fact the cops will claim to have received consent to search the vehicle.  There was no consent, and there was no probable cause to search.

Secondly, there is a story out today about 14 year old boys being required to register as sex offenders due to a high school prank.  It’s time to tell the whining hippy women and the “new-castrati” that enough is enough with this sex offender garbage.  Of course it has its place with real sex offenders.  But this has gotten out of control.  I’m tired of seeing this ruin the lives of good young people.  The sex offender laws are too broad.  Then once we label good people as “sex offenders”, it ruins their lives.  Not only this, but it waters down the real purpose of having registered sex offenders.  So what’s the point?

If you were wondering what the law is in West Virginia, it is basically this: if there is any conviction of an individual and the presiding judge makes a finding that the offense was “sexually motivated” in any way, that person then becomes a registered sex offender.  It doesn’t have to be an actual sex offense charge.

July 21, 2011 Posted by | Civil Liability, Corruption, Governmental Liability, Police, Police Misconduct, Prosecutors, Sex Crimes, Sex Offender Registration, West Virginia Concealed Carry Laws, West Virginia Gun Laws | 2 Comments

The Federal Officer Removal Statute 28 U.S.C. 1442(a)(1)

Here is a recent filing in the United States District Court for the Southern District of West Virginia.  It has to be one of the oddest things I have ever done in the realm of criminal defense.  Most lawyers know that a civil case in state court can be removed by the defendant(s) in certain circumstances.  In fact, most plaintiffs lawyers in West Virginia, usually myself included, do everything they can to avoid such a scenario.  But did you know that in certain instances, state criminal prosecutions can be removed to federal court?  Well it’s true.  Similar to being a plaintiff in the 4th Circuit, usually it would be a really bad idea to handle a criminal case in federal court rather than in state court.  Defendants almost always get hammered in federal criminal prosecutions.  But conceivably there are situations where you do want to be in federal court – especially one in which state court officials (e.g., prosecutors/magistrate judges) have formed a lynch mob and are going after your client.

28 U.S.C. 1442(a)(1) is known as the federal officer removal statute, and allows state court cases of almost any sort to be removed (forcibly) to federal court.  It is usually used in civil cases. For instance, if you were to try to sue an FBI agent in state court, it would quickly make its way to federal court using this removal statute, and it would be there about 5 seconds before being dismissed.  But 1442(a)(1) also allows for state criminal prosecutions to be removed.  It has rarely been used, mostly because scenarios which would invoke it rarely occur.  It requires that a federal officer be charged with a crime in state court, and that he or she have a colorable federal defense (usually federal immunity) to the charge.

In our scenario, my client does indeed have a colorable federal defense – LEOSA (Law Enforcement Officers Safety Act).  Passed in 2004, it allows current or required qualified law enforcement officers to carry concealed weapons notwithstanding any state or local laws to the contrary.  My client is a federal law enforcement officer and was charged with carrying a concealed weapon. The arresting state cop and the state prosecutors have claimed complete ignorance of the federal law.  And since it is a misdemeanor, it has been in the West Virginia magistrate court system, which in this case at least, equaled complete ignorance and disregard for federal law.  Using 1442(a)(1) I was able to file a Notice of Removal in federal court, which barring a remand by the federal judge, will completely divest the state courts from jurisdiction over the prosecution.

Between the civil lawsuit we filed over this, and the protracted criminal litigation (which is on its way to a state record for volume of misdemeanor litigation) it is mind numbing that state prosecutors and law enforcement would dedicate so many resources and expenses in order to secure a misdemeanor conviction on one person.  Beware, cross your local authorities and you could be next.

View this document on Scribd

December 23, 2010 Posted by | Concealed Weapons, DOJ, John H. Bryan, Judges, Lawsuits, Lawyers, Legislation, Police Misconduct, Prosecutors | 2 Comments

Media coverage of criminal cases in WV and mercy for good people

Several years ago, and again recently, I discussed my frustration at the lack of impartial coverage of high profile criminal cases in West Virginia by TV news media.  If you watch our local news around here you will notice two things: lots of mugshots and lots of interviews of police officers.  That’s just about all you will see.  Of course there are two sides to every story, but you will never, never hear them.  You will only hear the law enforcement side.

Recently I became involved in just such a case.  The media got involved and started broadcasting stories that just did not portray the situation accurately.  They were causing a big stink and provoking people to call the prosecutor and law enforcement to demand that the book be thrown at my client.

The client is a good person; well-liked by just about everybody who knows him.  He has never been in trouble before.  He was studying to become a police officer.  In fact, he was days away from getting a job as a police officer when the news station decided to ruin his life.  He was volunteering at a local school with the marching band.  He has a concealed weapon permit and had a pistol in his truck.  His truck broke down on school property and he had to hitch a ride home with a friend.  So he made the mistake of taking the pistol out of his truck and taking it with him.  He made the further mistake of showing his friend the pistol as he was taking it out.

Subsequently, the principal was apparently reviewing surveillance footage of the school grounds, and observed the gun.  Band director gets fired for having an unauthorized volunteer.  The media picks up on it, and eventually people think we have just narrowly-avoided a Columbine incident.  A crazy man wielding a gun at a local school.  Somebody has to pay.

I encountered the TV reporter in the courthouse.  She informed me that she had uncovered the identity of the gun-wielding volunteer and was going to run a story on it that evening.  I then offered to give an interview to try and set the record straight.  So I did, and I explained the accurate circumstances, on video.  Of course when the story was run that night there was a lengthy interview of a sheriff’s deputy explaining that my client had committed a felony and they were going to charge him for it.  They also broadcasted his name, age, and the location of his residence.  And that was it.  Nothing else.  No explanation from me.  They chose not to include any of my interview.  Of course I wasn’t surprised.  That is how it usually goes.  When your client is charged they show his mugshot and broadcast his name and other information.  When he is acquitted it goes unmentioned.

The reason is this: if viewers were to hear my explanation, they would say, “Oh, what’s the big deal about that? They are going to charge this kid with a felony and ruin his life over that?”  The story would lose its sensationalism.

Certainly the argument could be made that law enforcement and the prosecutor have no choice.  The guy was caught on video possessing a firearm (unloaded) on school property.  There is a statute in West Virginia that makes it a felony, with a 2 to 10 prison sentence and no opportunity at probation or parole for possessing a gun on school property, whether or not unloaded, or on any property upon which a school function is occurring.  To contrast that with other crimes, that is the same penalty for wanton endangerment with a firearm, which is like shooting a gun at somebody and missing.  Brandishing a firearm, which is like pointing a gun at somebody but not firing, is only a misdemeanor with a maximum sentence of one year.  So to a certain extent we can blame the legislature for creating an overbroad and unfair law.  And I do blame them.  Most of them are too cowardly to stand up for common sense and freedom.  Attach a school or domestic violence to any vice or allegation of misconduct, and you end up with a capital crime.  But I think there is also a place for mercy.

The police do not have to charge, and the prosecutor does not have to prosecute.  They have that discretion notwithstanding the legislature.  Not every crime has to be punished – nor should it be.  Many people would disagree with that.  But let those persons throw the first stones who have not themselves committed a crime without being caught or without punishment.  In the end it is up to people like me to be the voice of reason to a jury.  We are the last and best hope and saving the lives of good people like this young man.  It is a heavy burden.  You will see things differently when it is your son or daughter, who is a good person, but who has made some sort of mistake and ends up on the receiving end of the criminal justice system.  It’s not hard to do.  There are so many criminal laws that I do not know them all.  Do you think this kid thought that he may have been committing a felony when he took the gun out of his truck?  Of course not, yet we are ruining his life as a result.  There is a place for mercy and compassion in the court system.  But no legislator, prosecutor, sheriff, or judge gets elected by promising mercy and compassion.

November 17, 2010 Posted by | Concealed Weapons, John H. Bryan, Media Coverage, Prosecutors | 2 Comments

Tyrannical prosecutors protecting tyrannical cops

When you cross a police officer, in many West Virginia counties, you also cross one or more “badge bunny” prosecutors.  I have found that the difference between a good prosector and a bad one is their backbone and their integrity.  Confident, knowledgeable, experienced and honest prosecutors are independent.  They do what is right.  They know what is right – and what is wrong.  Others lack confidence, as well as the backbone to be independent from law enforcement.

As you venture between various counties in West Virginia, you will encounter prosecutors of both types.  I have encountered the badge bunny prosecutor derangement syndrome in one particular West Virginia county several times now.  In these badge bunny jurisdictions, even the magistrates are not immune from infection.  In fact, some are former police officers themselves.  Unfortunately, almost none are former lawyers.  Hell, who needs legal training when deciding bothersome legal issues, such as one’s freedom?  Magistrates are almost always infected where there is an outbreak among prosecutors.  If a prosecutor or a cop says the sky is purple, then the sky is purple.  Defendants and defense attorneys are scum – even if they are not scum.  They are worthless bastards.

If you want to experience injustice, piss off a cop in one of these counties.  For instance, you could have an affair with his wife.  He may be of the sort to arrest you illegally and beat you down when no one is looking, and while you are handcuffed.  A badge bunny prosecutor would proceed to prosecute you.  You could show him evidence that you were illegally arrested, and that you were illegally beaten.  The evidence could be indisputable.  But your barking up the wrong tree.  Unlike the good prosecutors, justice is not his concern, getting convictions is.  Protecting “his” or “her” law enforcement officers is priority numero uno.

So you then could file some civil lawsuits.  Then you have really made it personal to the prosecutor.  Justice gets thrown to the wayside altogether, and you now  have crosshairs on your back.  Your only way out is through a trial.

Now compare this to the often-seen scenario when a police officer violates the law.  He gets a sweetheart deal and fades from the spotlight conviction-free.  If it doesn’t piss you off now that this injustice and tyranny exists in West Virginia, then just wait until it happens to you.  Good people get wrongfully arrested in West Virginia.  Then you will need a lawyer who has the guts to stand up to these scoundrels and fight them on their home field.  Choose carefully.

August 4, 2010 Posted by | Judicial Misconduct, Magistrates, Police, Police Misconduct, Prosecutors | 4 Comments

WVSP feeling the heat, and deservedly so.

The latest of Charleston Gazette reporter Gary Harki’s article critical of the WVSP is, to me anyways, an absolute bombshell – though not surprising in the least.  Usually in the media you find brown-nosed reporting with regards to law enforcement, usually which talks about all the criminals who were arrested and/or charged.  Harki has had the gusto to take on the West Virginia State Police in a big way.

The article deals with former-Trooper-now-Hinton-Police-Chief-Snavely, who I have discussed before.  I wasn’t surprised when I found out that prosecutors were not charging Snavely with a crime.  But I was surprised to see Harki’s article titled, “prosecutor not told ex-trooper falsified log“.  Apparently the WVSP “investigation” into Snavely uncovered the fact that Snavely falsified his duty log for the evening when he was accused of his wrongdoing.  However, they apparently chose to leave that tidbit out of the investigation report which went to the prosecutor.  So Harki finds out about this from attorney Mike Clifford.  Harki then goes to the prosecutor who made the call.  And he is apparently pissed, and rightfully so – since it was published as being his decision not to prosecute Snavely.  And of course, as usual, the WVSP is angry at the attorney – at Clifford!  It was his fault – he shouldn’t have told Harki.

We have a culture of secrecy in the WVSP.  Even though for the most part they are good and law abiding officers, the top brass have have made some decisions which undermine the public’s trust and confidence in their integrity.  If you have a public official who has done something wrong, the public needs to know about it, and the public wants to know about it.  If covered up, the public gets pissed.  And the coverup is always worse than the crime.  If they would just throw the bad officers under the bus where they belong, from the very beginning, the WVSP would come out smelling like a rose.  It would reinforce our confidence in law enforcement.

Instead we have the awful situation where an innocent citizen can have his civil rights violated by some cowboy cop, and there’s nothing the person can do about it.  What can they do?  Call the police?  Yeah right.  Call the West Virginia State Police?  Yeah right.  Call the Governor?  You just get a form letter in return.  Call your congressman?  You just get a form letter.  Call the FBI?  Do you have any idea how many complaints they probably get?  Without something more to lend legitimacy to your complaint, there is about a 99% chance they will do nothing about it.  The only thing you can do is get a civil lawyer on your side.  Someone who has the guts to sue the WVSP, and to put up with the WVSP verbally accosting them in every newspaper article rather than commenting on their troopers’ misconduct.

July 19, 2010 Posted by | Civil Liability, Corruption, Governmental Liability, Lawsuits, Lawyers, Police, Police Misconduct, Prosecutors, State Agencies | 1 Comment

“Nasty Little Surprises” and “discovery”

Back in July of 2008, I posted about one of Mark Bennett’s posts on “NSL’s” – nasty little surprises.  A NSL is essentially exculpatory evidence which either the prosecution/State has not provided, or which they are completely unaware of.  The point was, since the deck is stacked against you to begin with, why disclose NSL’s which you discover in the course of investigating and preparing for your criminal jury trial?  After all, the chances of us winning to begin with are slim, and much of that is due to the way the system is set up.  If we let the prosecutor on to our theory of the case before our opening argument, he or she will inevitably do everything possible to shoot it down – either by offering deals to slum rats to testify to something different than what they have previously said, or by prepping the investigating officer to pontificating on the subject in such a way as to steal our thunder.  Of course, in a perfect world you should share exculpatory evidence with the prosecution/State so they could dismiss the case.  But that’s not usually how prosecutors work unfortunately.  They want a conviction, they want to win.  Many would rather diffuse your NSL and move ahead with prosecution.

The only problem is that in West Virginia, the defense is obligated to provide “discovery” to the State/prosecutor.

First of all, someone please tell me how that doesn’t violate the 5th Amendment of the US Constitution?  As defense attorney, I represent the defendant obviously.  In the United States, defendants in criminal trials have no obligation to ask even a single question, call even a single witness, or introduce even a single item of evidence.  They have the 5th Amendment right to remain silent.  But the state rules say that if I do call a witness or present evidence, I have to provide disclosure of such before the trial – sometimes by a particular date.

As if the system didn’t make it easy enough for prosecutors already….  If you hear prosecutors talk about trying cases, they make it sound as if they have such a difficult task.  They have to come up with such an enormous amount of evidence, and they have to prove so much….  In reality, being a prosecutor is a piece of cake.  You are set up to win.  In fact, to actually lose a case due to an acquittal in West Virginia, all 12 jurors have to unanimously vote “not guilty.”  With that low of a bar, it’s pretty hard not to win.  And yet, the State has mandated that we cannot ambush prosecutors with some types of NSL’s.

The practice of prosecution is basically preparing for, and conducting, direct examinations.  They’re their witnesses, they’re mostly cops or victims, or people with plea deals that come with a noose around their neck, held by the prosecutor, which require them to do the prosecutor’s bidding, or else.  And they prepare the witnesses and ask open ended questions and check off on their legal pad everything the person is supposed to say.  That’s pretty much it.  As defense attorneys, we engage in guerilla warfare with all of these witnesses.  We almost exclusively cross examine witnesses.  We have to learn, develop and master the art of cross examination.  It is much, much more difficult.  And more unpredictable.

When we call a NSL witness, we reverse the roles and put the prosecutor on defense – something they are not used to.

The “discovery” rules do not mandate that we provide all of our NSL’s to prosecutors.  We have to disclose the names and addresses of any witnesses, though generally not the substance of their testimony (as in civil cases).  Of course the prosecutor is free to have someone contact or interview the person to see what they are going to say.  Unfortunately, sometimes that consists of running criminal background checks on the person, and otherwise investigating the person as if they were a suspect in a crime.  We also have to provide copies or access to any exhibits or tangible evidence we intend on presenting.

The loophole here is in the substance of the witness testimony.  The prosecutor doesn’t necessarily have any idea what I will ask the witness on the witness stand.  He can interview the person before hand, but he may not be able to put 2 and 2 together before I do so for him/her in front of the jury.

I recently revealed some NSL’s to a prosecutor/court/jury during the course of a criminal jury trial.  The prosecutor was upset because I only revealed the identities of the witnesses the day before the trial, and he strenuously asked the judge to “suppress” my witnesses due to failure to comply with discovery rules by disclosing the witnesses well in advance of trial.

There are several problems with this:

(1) I only found these particular witnesses at the last minute, and therefore I could not have disclosed them earlier; (2) The witnesses had exculpatory evidence and law enforcement knew about them in advance, yet failed to disclose them to the defense; (3) If these witnesses had exculpatory evidence, shouldn’t the prosecutor, who’s job it is to see that “justice” is done, also be interested in that information – in finding the truth – and is it ever proper for the prosecution/State to suppress exculpatory evidence from a jury – a jury who is in the process of deciding the fate of a young man who otherwise would have a long, hopefully happy, life to live?

Of course the practical reality also is that, if the court did exclude/suppress these witnesses, it would be per se ineffective assistance of counsel and a mistrial would have to be declared.  So in reality, even if the court sympathizes with the prosecutor, the greater interest is in judicial economy, and no judge wants to declare a mistrial if it can be avoided.  Moreover, no judge wants to invite a reversal if no mistrial is declared and exculpatory evidence is suppressed due to failure of counsel to disclose or provide “discovery.”

When you really think about these things, you come to the realization that this is a scary world we live in.  There are so many damn laws, just about everything is illegal.  And prosecutors can be like dictatorial tyrants.  If they, or law enforcement, want you convicted of something, they will do it.  Only a defender of people – a defender of the constitution – may be able to save you.  And if you have to depend on the public defender or court appointed defense counsel to do this, they may not have the time/motivation/resources to conduct their own investigation and find exculpatory evidence.  The best protection from wrongful conviction is money.  Even if you have to borrow it, do so.  Hire a criminal defense attorney, the best you can afford.  Hire a private investigator.  Fight for your life.

– John H. Bryan, West Virginia Attorney

December 30, 2009 Posted by | Prosecutors, Suppression, Trials | 4 Comments