Since my last post on this topic, much has happened in Pocahontas County, West Virginia.  Yet another deputy of that county, was charged with a felony – actually five (5) felonies.  When I first heard this, I knew it was just a matter of time before the charges were dismissed, since law enforcement officers are apparently above the law in that county – as we all learned when this deputy’s buddy was previously given a sweetheart plea deal in his felony criminal case which I detailed earlier.

Indeed, the Pocahontas Times reported that the charges have now been dismissed.   Apparently the prosecuting attorney (and her assistant) were recused from remaining on the case (which is a convenient thread that runs through just about every case where law enforcement officers are charged criminally).  Actually, they requested to be recused. As I have pointed out previously, why and the heck is there a conflict for a prosecutor when a cop breaks the law?  In my opinion, this is step No. 1 for the cop-gets-off process. So, this prosecutor and her underling were recused.  So the defense makes a motion to dismiss.  Then there is a hearing with no prosecutor.  So a motion to dismiss is heard with just the cop and his defense attorney in the room.  Obviously the result was that the charges were dismissed.  Apparently step No. 2 in the cop-gets-off process is to have no prosecutor show up at the trial.

According to Allegheny Mountain Radio, no prosecutor was at the hearing or assigned to the case due to “miscommunication.”  Show me a case where Joe Blow got his five felonies dismissed due to “miscommunication” between prosecutors.  It would never happen.  But, conveniently, we have a cop in a rural county, where that exact thing just happens to take place.  The stars and the planets align, hell freezes over, and the man walks free and clear.  

The prosecutor seemed surprised and disappointed this happened.  She is quoted at one point in the article:

Prosecuting Attorney Donna Price said Tuesday afternoon that because of that, Smith ordered the assistant prosecuting attorney out of the courtroom before he could explain the state’s position.

Nothing really surprises me about what happens in this particular county.  But this sentence did catch my eye.  It reads that “Prosecuting Attorney Donna Price said Tuesday afternoon that….”  

I was in the Pocahontas County courthouse on Tuesday afternoon.  I desperately needed to speak with the Prosecuting Attorney on behalf of a client.  I had attempted to call her probably twenty times.  I left message after message after message over the course of months.  I never received a return call, and the receptionist at her office would consistently, and rudely, brush me off every time I urged her to have the prosecutor return my call (as if a taxpayer-funded public office employee had the right to be rude to lawyers, or anyone else, calling that office…).  Mind you, I have dealt with many a prosecutor, in many different counties, and never have I had this problem before.  But, in this instance, my client had not only a pending criminal case, but a pending civil case against the county and her office.  I thought maybe that had something to do with it.  

She had two arrest warrants out against the person, and I was there to turn him in and get a bond set – in part because we were there for a marathon session of depositions which would last two days.  The only time I was able to speak with her previously was when I dropped into her office unannounced.  At that time, she agreed that she would agree to a reasonable bond.  Well, when I actually showed up that morning, which was expected, and which was Tuesday July 7, 2009 – the “Tuesday” referred to in the article – her office door was closed.  Her assistant prosecutor was there, and said that she was not in the office that day, that she was out all day because of a death in her family.  

So was she in the office/courthouse on Tuesday July 7, 2009 and avoiding me, or was she out?  Maybe she was out part of the day, or maybe she spoke to the reporter over the phone….  I don’t know for sure, but I really didn’t appreciate being barred access to the prosecutor when this reporter had full access. 

But there was more.

After telling me of his boss’ absence, the assistant prosecutor then said that he had spoken to her about my client, and that she wanted a “six figure bond.”  This was for two misdemeanors mind you.  It seemed obvious to me that this was retaliation for the civil case having been filed.  A six-figure bond for two misdemeanors?  Not only was this a true injustice, but it was an ambush.  Both myself and my client were ambushed by this request for a “six figure bond” when I was previously assured that bond would not be a problem.  Most other prosecutors would have given me a heads-up beforehand.  The goal seemed obviously to put my client in jail as retaliation.  Luckily, I was able to negotiate a slightly lower bond and my client was able to bond out.

But as the Cat in the Hat says, “that was not all, no that was not all.”

I had previously demanded two videos from the prosecutor.  They were demanded by a prior attorney several times, and they were demanded by myself several times, including through a FOIA request, a motion to dismiss due to failure to produce evidence, and a civil lawsuit.  The two videos, showing two arrests of my client, for which he was charged, were never turned over to me or my client.  In fact, the prosecutor wouldn’t even acknowledge the existence of one of the videos, even up until the day of the depositions in the civil case (the Tuesday I was talking about).

Well guess who did have both of the videos….  

That’s right.  The civil defense attorney for the county, and the civil defense attorney for the State Police both had the videos.  So here we have a criminal defendant charged almost two and a half years ago with committing crimes.  Jury trials are scheduled with no videos being produced.  The defendant fails to appear because the videos were not produced and he is afraid of getting railroaded.  He is charged for failure to appear (twice).  They still don’t produce the videos.  They get a FOIA request.  They finally admit to one of the videos, but still don’t produce.  A motion to dismiss due to failure to produce evidence is filed.  They still don’t produce.  A civil lawsuit is filed.  They still don’t produce.  Another seven months pass while the civil case is being litigated.  The prosecutor still doesn’t produce the videos to the defendant, who still has pending criminal charges.

Mind you, the prosecutor never even admitted to the existence of one of the videos to myself or my client, yet the civil defense attorneys were provided digital copies of both videos.  We saw them for the first time during a videotaped deposition.  You guessed it, compliments of the prosecutor, it was another ambush.

When I went back down to the prosecutor’s office, her door was still closed (this was the next morning however), and still apparently  “out of the office.”  I confronted her assistant prosecutor who was standing in the reception area.  I told him that I didn’t appreciate the suppression of this evidence from me while the same was provided to civil defense attorneys, unbeknownst to me.  I told him I would get to the bottom of the matter, and that if I found out that anything unethical was committed, I would report the same to the state bar.  Well that did it.  He started yelling at me, accusing me of threatening him, and, suddenly, the boss prosecutor was back “in the office,” and opened the door to her office and walked out and began yelling at me as well, telling me that she didn’t have to do a damn thing basically.  Following her lead, PCSD deputy Brad Totten then got in my face and joined in, shouting at me.  All of them were shouting, in part, that they thought that I had received the videos, and that their previous secretary must have mistakenly failed to send me the videos.  

Give me a break.  If that is true, then give me her name and I’ll take her deposition.  Show me the cover letter that should have accompanied the videos.  Show me proof of postage.  Show me any proof.  

Res ipsa loquitur – the thing speaks for itself.

For the record, I would like to know whether Prosecutor Price was “out of the office” at approximately 9:30 a.m. on Tuesday July 7, 2009 – the same day and time that according to Alleghany Mountain Radio, she sent Assistant Prosecuting Attorney J.L. Clifton downstairs to inform her about what was going on in the aforesaid deputy’s prosecutor-less hearing in magistrate court, and also the same day that she was available to the Pocahontas Times reporter who interviewed her regarding the matter.  And was there ever any attempt at sending me the videos?  Maybe a special prosecutor should be appointed to investigate that.  

Additionally, maybe someone should investigate a prosecutor’s office who uses the threat of continued criminal prosecution as leverage in civil litigation, which happened in this case.  It wouldn’t be the first time Pocahontas County has had a prosecutor investigated.

There’s no real conclusion to the story, just the fact that I’m now all ‘riled up and even more willing to speak out against injustice occurring daily in places like Pocahontas County, West Virginia.  On a lighter note, I was really impressed with Magistrate Kathy Beverage of that county.  I wish more magistrates had her inherent sense of justice and courage. 

Hopefully I’ll get to Part III sometime soon.

 – John H. Bryan, West Virginia Attorney.