WV Civil Rights Lawyer

Police Misconduct, Civil Rights Law

The moment I saved this young man’s life….

 

Somebody sent me a copy of audio which was recorded almost a decade ago at a criminal felony jury trial.  It is the audio of my closing argument to the jury in a First Degree Arson Trial in February of 2010.  Wow, it brought back memories.  Here is the last 11 and a half minutes of it.  Listen to how I hand the case over to the jury at the end…..   I got that from Gerry Spence.

People ask lawyers all the time: do you ever think your client is guilty? The worst possible scenario as a trial lawyer is to be responsible for defending someone who is actually innocent, and screw something up.  This young man was innocent.  Yet he was facing 20 years in prison.  His family came to me and asked me to save their son.  He had done a stupid, ridiculous thing, and had given a false confession to a girl over the telephone, for some reason thinking it would impress her.  He bragged that he started a fire which had burned down a big barn, which had been a local mystery up to that point.  But he didn’t actually do it.  But…. he was caught on a recorded phone conversation stating that he did.

He was charged with first degree arson.  I ended up proving to the jury that he had lied about it, and that he was actually innocent.  Talk about a difficult task.  But I did it.  This was the fastest I’ve ever had a jury return a verdict.  It took maybe 6 or 7 minutes.  This guy/kid could have spent the last decade sitting in prison….

Choosing a lawyer is an important decision.  With this audio, you can hear an example of me speaking for somebody in court, in a situation when that individual’s liberty was at stake, and see the end result.  Pretty cool.

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October 18, 2018 Posted by | Arson, John H. Bryan, Juries, Lawyers, Trials | Leave a comment

My early training as a trial attorney

I recently found some old photos of my experience as a captain of the UCF Trial Team, one of the best mock trial programs in the country in the early 2000’s.

https://www.facebook.com/JohnBryanLaw/posts/1052250548310140

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August 22, 2018 Posted by | John H. Bryan, Trials | Leave a comment

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

In one of the last opinions written by now former-Supreme Court Justice Ketchum, I can announce that we just won an important real estate case before the WV Supreme Court

The newly-indicted justice actually didn’t vote, but we recently a won a big case.  It was a case we had tried to a jury, and won.  Months down the road, the trial judge threw out the verdict and tried to take it away from us.  But we appealed, and won.  The verdict has been reinstated.

You can read the opinion here.

McInarnay et al. v. Hall, et al.

It actually created some new law in West Virginia:

(Basically, a trial lawyer needs to complain about insufficiency of the evidence before the case goes to a jury, not after.  If you roll the dice and lose, you can’t claim afterwards that the jury didn’t have enough evidence.)

Under the WEST VIRGINIA RULES OF CIVIL PROCEDURE [1998], when a party has failed during a jury trial to make a motion for judgment as a matter of law under Rule 50(a) challenging the sufficiency of the evidence, that party has waived the right to mount any post-trial attack on the sufficiency of the evidence under Rule

50(b). Additionally, if the party moves for a new trial under Rule 59 and attempts to challenge the sufficiency of the evidence supporting the verdict, then the scope of review of the motion is confined to whether there was any evidence to support the jury’s verdict, irrespective of its sufficiency, and which, if not addressed by the court, would result in a manifest miscarriage of justice.

June 20, 2018 Posted by | Lawsuits, Lawyers, Trials | Leave a comment

So you want to sue the police, Part II

Back in 2010, I wrote a post entitled, So you want to sue the police . . . . , and it has had an overwhelming number of reads.  Well, it’s been 8 years since then, and I’ve learned a lot  I’ve tried cases since then.  Appealed cases.  Settled cases.  Won cases.  Lost cases.  I’ve reviewed probably thousands of allegations.  Since this appears to continue to be a popular topic, here is part II.

  •  Have documentation.  When people call our office about allegations of police misconduct, and/or civil rights violations, we first ask them if they have any documentation.  Here is what we need:
    • Police Report.  This could be what is referred to in West Virginia as a “Criminal Complaint.”  Or, it could be any other official report containing a narrative, or version of the events, written by a police officer.
    • Medical Records.  If the complaint is that injuries were caused by the police, we would like to see documentation of those injuries.  Was there a hospital visit, or doctor’s office visit pertaining to the injuries?  If so, you are entitled to the records, and we will need to review them.
    • Photographs.  Again, if the complaint is that injuries were caused by the police, we would like to see photographs of the injuries.
    • Video Footage.  It goes without saying that if video footage exists of the incident, we want to see it.  It may be the case that footage exists, but the police are in possession of the video.  In West Virginia, and most states, there is a right on behalf of private citizens to request that footage.  This is called a Freedom of Information Act Request, or FOIA request.   If criminal charges were filed, a defendant is going to have a right to receive a copy of the footage.
  • Don’t Wait.  In West Virginia, you generally have 2 years to file a lawsuit based on a civil rights violation.  Other states may have different statutes of limitations periods, even though they are all the same type of claim under federal law.  In some cases it could be less.  Don’t wait 2 years and then call us the day before the statute of limitations expires.  We will not take the case.  Yes, people do this.
    • Witnesses.  Witness recollection of incidents gets worse over time.  Witnesses may die and their testimony may be lost forever.
    • Evidence.  Some evidence disappears with time.  911 records and transcripts may disappear in as little as 30 days if not requested.
  • Do not make a formal complaint to the police.  At least not without acting through competent legal counsel.  Police should never investigate themselves. But that’s exactly what happens in West Virginia, and many other states.  In regards to the West Virginia State Police, in particular, and other larger agencies, this is a huge mistake that people make.  Why?
    • Witness Intimidation.  If an individual makes a formal complaint, for instance to the State Police, they are presented with a piece of paper they are forced to sign which warns them that they will be prosecuted if they are found to have given false information.  This is purely a threat meant to having a chilling effect and to scare off victims of police misconduct who would otherwise complain.
    • Interrogation.  The next thing that happens is, an “investigator” from the agency will want to interview you.  This is not an actual unbiased interview.  This is an interrogation.  They will, perhaps secretly, record the questioning.  Without a lawyer present, a detective will perform an interrogation. They will ask you leading questions.  They will essentially take your deposition, but without your lawyer present.  You will not be given a copy of the recording.  The agency will save it, and later use the recording against you in court.  I have seen it happen many times.
    • Building a defense.  The “investigator” will obtain information from you – not for the purposes of determining whether the complaint is justified, but for the purposes of undermining your allegations.  If you tell them a particular person witnessed the event, they can now go confront that person.  They can tailor their defense to counter your exact allegations.  I am generalizing.  Of course some investigators are honest and will do the right thing.  But for the purposes of protecting yourself, you should assume they are not.
    • Photographs.  If the complaint pertained to excessive force, or resulted in injuries, the “investigator” will take photographs of you.  These photographs may be taken at a time when injuries have become less visible, or healed.  They may be taken in such a way as to minimize their appearance, rather than to document the truth.
  • Call an attorney experienced in civil rights law as soon as possible.  You can’t call just any lawyer for a civil rights case.  The area of civil rights, and in particular police misconduct, is a small niche area of the practice of law. Most licensed lawyers will be inexperienced in civil rights law.  There are only a handful of competent civil rights plaintiffs’ lawyers in West Virginia who regularly handle these types of cases.  I often get referrals from other lawyers across West Virginia who encounter clients with civil rights complaints. There are special aspects of the law in these types of cases that have nothing to do with automobile accident cases, or even criminal defense cases.  Make sure whichever lawyer you call can demonstrate a record of successfully handling these types of cases.  For years, I have been teaching other lawyers, government leaders, and law enforcement administrators, seminars on the law of police liability and civil rights litigation.

March 29, 2018 Posted by | Civil Liability, Excessive Force, Governmental Liability, John H. Bryan, Lawsuits, Lawyers, Police, Police Misconduct, Searches and Seizures, Trials | Leave a comment

Civil Rights Trial in Federal Court in Charleston This Week

Starting tomorrow, the Carpenter civil rights case will be tried before a jury in federal court in Charleston.

The U.S. District Court for the Southern District of West Virginia already issued an order finding that the Carpenters civil rights were likely violated, and ordering the case to trial:

Carpenter v. Perry (S.D. W. Va., 2017)

December 4, 2017 Posted by | Civil Liability, John H. Bryan, Searches and Seizures, Trials | Leave a comment

Monroe County Jury Verdict in Elder Financial Abuse Case

Last week I tried a four day jury trial in the Circuit Court of Monroe County, West Virginia, for a 98 year old lady named Isadora Beavers. On July 23, 2013, she walked into my office in her black and white polka dot dress, and hat, and demanded to see me. She told me that she had a power of attorney whom she suspected was stealing from her. She told me that her power of attorney was also the Vice President of her bank, and that she had been unable to get copies of her bank statements. That same day I helped her revoke the power of attorney and, at her request, demanded copies of ten years of her bank records from her bank.

Shortly afterwards she fell and was admitted into the hospital. I visited her in the hospital and told her what I had found in the past few years of her bank records – primarily lots of “cash” checks. I asked her if she spent much cash. She told me no, that she grew up in the Great Depression era and was thrifty with her money. She did admit that she indulged in getting a fancy haircut every once and awhile. And she liked to eat at Shoney’s. I told her that a deed existed giving her power of attorney joint ownership of all of her real estate, with a right of survivorship. She said, no, that property was supposed to go to her family after her death.

Not long after she began to decline pretty quickly. She started to suffer from dementia. Family members arrived in the area and petitioned the court to become her guardians and conservators, which was granted. They later contacted me and asked me to get the real estate back so they could finance the best possible medical care for Isadora. We demanded the return of the real estate. The response from the ex-power of attorney was that she would deed the property back, but wanted a release from liability in exchange for it. Not surprisingly, this offended pretty much all of Isadora’s relatives, and they gave me the go-ahead to sue her.

Last week, we presented the overwhelming evidence to the jury. They returned with a plaintiffs’ verdict on all counts: fraud, breach of fiduciary duty, conversion and unjust enrichment. They awarded $326,771.06 in damages against the defendant, Betty B. Brown. That included $175,000.00 of punitive damages.

In my closing argument, I asked the jury to send a message that financial abuse of the elderly will not be tolerated. I believe they sent that message loud and clear.  By the way, all money collected is going to Isadora to fund her medical care and expenses.  The defendant is going to be reasonable for paying all of our attorney fees and expenses as well.

Media Reports:

Former bank exec is liable in elder abuse suit

Jury awards $325K to elderly victim of financial abuse

State woman to pay $325,000 in elder abuse case

In the courtroom with some of Isadora Beavers’ nieces and nephews immediately following the verdict:

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December 19, 2014 Posted by | Civil Liability, Corruption, Embezzlement, Financial Abuse of Elderly, Fraud, John H. Bryan, Juries, Lawsuits, Lawyers, Media Coverage, Trials | Leave a comment

New Summary of the Sawyer v. Asbury Opinion

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.

April 9, 2014 Posted by | Civil Liability, Excessive Force, Governmental Liability, John H. Bryan, Judges, Juries, Lawsuits, Lawyers, Police, Police Misconduct, Trials | Leave a comment