WV Civil Rights Lawyer

Police Misconduct, Civil Rights Law

Forget what you heard: the reality of the law of self-defense with a firearm in West Virginia. What does “castle doctrine” or “stand your ground” actually mean in WV?

Case studies are important aspect of learning and evaluating the law.  Being a Second Amendment supporting state, most West Virginians have heard one thing or another about the “castle doctrine,” or about what the law is regarding self defense with a firearm in West Virginia.

You can read the statutes, and you can read the case law.  You can read advice from anonymous sources on the internet.  But perhaps the best method is to go directly to a case-in-point.  A true nightmare scenario involving a home invader, a shooting, and a prosecution by overzealous authorities.

This case demonstrates a real life scenario.  It shows how the media and law enforcement can shift the narrative very quickly.  Most importantly, it shows the actual charge to the jurors who decided the man’s fate.  I obtained a copy of the jury charge, including the jury instructions, from the circuit clerk’s office, and have uploaded them to this site.  They are linked at the bottom of the page.  I also am providing a complete narrative showing some of the media reports, and how they shifted very quickly, turning on the homeowner.  It also shows how law enforcement used the media against the homeowner, poisoning the potential jury pool.

In March of 2015, a man intoxicated on various drugs, stripped off his clothes and attempted to forcibly enter the home of a family in Huntington, West Virginia.  The homeowner, Micah LeMaster, shot the intruder three times with his handgun.  He then followed the intruder outside towards the sidewalk, where he fired three more shots, resulting in the death of the home invader.  It was undisputed that this was a home invasion.  However, the media and the police quickly turned on the homeowner, resulting in an arrest, charge of first degree murder and a $700,000.00 bond.  The trial took place in November of 2016, resulting in a complete acquittal following his assertion of self defense and West Virginia’s “castle doctrine” law.  

One particular TV station’s website has their reporting of the incident, which in itself is educational.  From oldest to most recent:

LeMaster Media Narrative

If you really want to educate yourself on self defense law in West Virginia, read the actual law given to the LeMaster jury from the presiding trial judge.

The Actual Charge To the LeMaster Jury

The law given to the LeMaster jury contained the following specific instruction on the law pertaining to the West Virginia “Castle Doctrine,” in part:

An intruder is a person who enters, remains on, uses, or touches land or chattels in another’s possession without the possessor’s consent.

Our society recognizes that the home shelters and is a physical refuge for the basic unit of society, the family.  A man attacked in his own home by an intruder may invoke the law of self-defense without retreating.  The occupant of a dwelling is not limited in using deadly force against an unlawful intruder to the situation where the occupant is threatened with serious bodily injury or death, but he may use deadly force if the unlawful intruder threatens imminent physical violence or the commission of a felony and the occupant reasonably believes deadly force is necessary.

The violent and unlawful entry into a dwelling with intent to injury the occupants or commit a felony carries a common sense conclusion that he may be met with deadly force.

The source for this is the fact that West Virginia is a “stand your ground state,” and does not require a person to retreat before using deadly force:

(a) A lawful occupant within a home or other place of residence is justified in using reasonable and proportionate force, including deadly force, against an intruder or attacker to prevent a forcible entry into the home or residence or to terminate the intruder’s or attacker’s unlawful entry if the occupant reasonably apprehends that the intruder or attacker may kill or inflict serious bodily harm upon the occupant or others in the home or residence or if the occupant reasonably believes that the intruder or attacker intends to commit a felony in the home or residence and the occupant reasonably believes deadly force is necessary. 
(b) A lawful occupant within a home or other place of residence does not have a duty to retreat from an intruder or attacker in the circumstances described in subsection (a) of this section. 
(c) A person not engaged in unlawful activity who is attacked in any place he or she has a legal right to be outside of his or her home or residence may use reasonable and proportionate force against an intruder or attacker: Provided, That such person may use deadly force against an intruder or attacker in a place that is not his or her residence without a duty to retreat if the person reasonably believes that he or she or another is in imminent danger of death or serious bodily harm from which he or she or another can only be saved by the use of deadly force against the intruder or attacker. 
(d) The justified use of reasonable and proportionate force under this section shall constitute a full and complete defense to any civil action brought by an intruder or attacker against a person using such force. 

W. Va. Code § 55-7-22(a)-(d). 

Of course, there are exceptions. The absolute immunity afforded by Section 55-7-22 does not apply in the following circumstances: 

– The person who would invoke Section 55-7-22 was attempting to commit, committing, or escaping from the commission of a felony; 

– The person initially provoked the use of force against himself, herself, or another with the intent to use such force as an excuse to inflict bodily harm upon the assailant; 

– Otherwise initially provokes the use of force against himself, herself, or another, unless the individual withdraws from the physical contact and clearly indicates to the assailant the desire to withdraw, but the assailant continues to use force. 

W. Va. Code § 55-7-22(e)(1)-(3). Case law considering Section 55-7-22 is sparse. See State v. Samuel (No. 13-0273, Mem. Dec.) (Nov. 8, 2013); United States v. Matheny (No. 2:12-CR-00068, S.D. W. Va., May 8, 2012). 

Nothing in Section 55-7-22, however, permits the creation of a hazardous condition on or in real or personal property designed to prevent criminal conduct or cause injury to a person engaging in criminal conduct (e.g., spring-loaded shotguns). Nor does Section 55-7-22 authorize or justify a person to resist or obstruct a law-enforcement officer acting in the course of his or her duty. W. Va. Code § 55-7-22(g). 

[As quoted from the West Virginia Gun Law CLE 2017]

I hope this clears up some of the confusion out there regarding West Virginia’s self defense laws, the practical application of what they mean, and how the “castle doctrine” and “stand your ground” actually work.

 

August 3, 2018 Posted by | Media Coverage, Police, Prosecutors, Self Defense, Trials, West Virginia Gun Laws | Leave a comment

What kind of paperwork is generated during 40 years of wrongful imprisonment?

This is it.  This is the paperwork generated by the justice system during 40 years of wrongful imprisonment.

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People assume that people convicted of murder get a large amount of appeals, and have judges looking over their case to make sure everything was constitutional and fair . . . .  Nope.  This folder contains no actual direct appeal of James McClurkin’s murder conviction.

His lawyer who represented him during the 1977 trial which convicted him dropped the ball completely.  He filed the notice of intent to appeal, but never actually followed through.  Apparently he was waiting on payment from Mr. McClurkin’s family prior to filing the appeal.  However, James’ father, who had hired him initially, passed away two weeks prior to the trial, and had spent all he had on James’ trial.  The result was that Mr. McClurkin did not receive a direct appeal for his murder conviction.  The State of South Carolina filed a motion to dismiss the notice of intent to appeal based on the failure to take any action beyond filing the notice.  So the “appeal” was dismissed forever.  What followed is paperwork which mostly discusses legal technicalities such as failure to comply with deadlines, and the discussion of rules which forbid inmates from bringing up old issues.  It doesn’t appear that Mr. McClurkin ever had the assistance of a lawyer at all up until 1992, when the real murderer confessed.  Every document James filed throughout his incarceration always mentioned first that James had exhausted his appeals.  Well, he never got an appeal, and it is a fiction – a lie – that he exhausted his appeals.

The notoriously racist trial judge, Judge Moss, who in 1985 created “controversy” by using the “N word” from the bench (in response to black protestors following the conviction of a black man accused of shooting a white man – ironically similar to James’ conviction).   Here is an article I tracked down from January 28, 1985, as it appeared in the South Carolina Herald-Journal.

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This file contains almost no discussion of the evidence upon which James’ murder conviction stands.  At one point, a lawyer for the South Carolina Appellate Public Defender’s Office filed a motion to withdraw from representing James due to the case being “without merit.” He didn’t bother to mention the evidence from the 1970’s, or the lack thereof.  He didn’t even look into the 1992 confession and testimony of the real murderer.  This was 2004.  James would spend another 12 years in prison.

This should be a real wake-up call.

July 6, 2018 Posted by | Civil Liability, Evidence, Governmental Liability, Judges, Judicial Misconduct, Lawsuits, Lawyers, McClurkin Case, Media Coverage, Murder, Police Misconduct, Prosecutors, Trials, Wrongful Imprisonment | Leave a comment

Our new mission: South Carolina man wrongfully imprisoned for murder from 1977 through 2016

We are pleased to have been hired to represent a man named James McClurkin.  James was convicted of murder in 1977.  In late 2016, law enforcement appeared at his parole hearing and testified that the old murder case was reopened, and that James was innocent.  James was released.  He was 63 years old, and had been in South Carolina prisons since the age of 18.

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South Carolina is one of the states which does not provide compensation to innocent people who are wrongfully imprisoned and then later exonerated.  Hopefully that legislation can soon be enacted in South Carolina.  But until that happens, we are working hard to compensate Mr. McClurkin for the terrible injustice which occurred in his case.

Here are some of the media accounts of his release from prison:

Chester man paroled after 39 years for crime he denies. Were wrong men convicted?

Judge says Chester men must go to S.C. Supreme Court to seek exoneration for murder

‘I am free’: Chester man in prison 43 years goes home, still hoping to be exonerated

‘The air. It smells different. Like freedom.’ Man freed after 39 years in prison for murder police now say he didn’t commit

The sheriff said he didn’t do it and he was released from prison but stigma impossible to shake.

James McClurkin and his co-defendant were convicted of the 1973 murder of laundromat attendant Claude Killian.  James, and his co-defendant Ray Charles Degraffenreid, both African Americans, were convicted under the brutal 1970’s Chester County, South Carolina justice system, which involved, among other things, a presiding trial judge who was known for using the “N word” while on the bench.

The real murderer actually confessed in 1992, which was corroborated by the fact that he was convicted of a similar murder, and by the fact that he had no alibi on the night of the murder.  However, the justice system once again failed James, and he was sent back to prison for another 25 years. Now law enforcement reopened the case, and have concluded that the real murderer was telling the truth.  How did this occur?  Well, among other issues, the mother of the real murderer was apparently the maid of the prosecutor who prosecuted James and Ray Degraffenreid.

This sounds like a novel, but it’s not.  It’s real, and it was only uncovered because a courageous new sheriff was willing to give someone the benefit of the doubt, and double check an old case.  Follow along as we jump into this case and work to reverse the wheels of justice.

IF YOU LIVE IN SOUTH CAROLINA, PLEASE CONTACT YOUR POLITICIANS AND EXPRESS YOUR SUPPORT IN PLACING THESE CASES BEFORE THE GOVERNOR OF SOUTH CAROLINA.  BOTH JAMES MCCLURKIN AND RAY CHARLES DEGRAFFENREID SHOULD BE PARDONED BY THE GOVERNOR OF SOUTH CAROLINA.

You can donate in order to assist with James McClurkin’s living expenses through the following site:

https://www.youcaring.com/jamesmcclurkin-815274

June 22, 2018 Posted by | Civil Liability, Corruption, John H. Bryan, Judges, Judicial Misconduct, Lawsuits, Lawyers, Legislation, McClurkin Case, Media Coverage, Murder, Police, Police Misconduct, Prosecutors, Trials, Wrongful Imprisonment | Leave a comment

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.

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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:

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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