Here’s a quick update video I did for Youtube on the Dustin Elswick case – the case where the drug task force was caught on video searching his house by hidden cameras.
Here’s a quick update video I did for Youtube on the Dustin Elswick case – the case where the drug task force was caught on video searching his house by hidden cameras.
I’ll be in federal court tomorrow, Monday, February 3, for a pretrial hearing in the other Putnam County case with a video, and will potentially be meeting with additional witnesses afterwards, if there’s time. If you have information, please let me know.
A few days back I had to trim the video in order to take out the local TV coverage of the task force guys, where they’re walking around the trailer park, banging on doors, etc. They claimed copyright on the footage and threatened to sick their lawyers on me. So I just took that part down. But I assume that you can find it on their site if you look for it. At some point, I’m sure it will be evidence of record anyways.
Since the original video was uploaded, the Putnam County Sheriff has ordered an internal investigation. Right now we’re awaiting the results of that investigation, and also proceeding with our own.
I have personally met with investigators, and have provided them whatever they wanted out of my file. I also made my client and an eyewitness available to them for questioning. I also have received yet another video showing them inside an individual’s home, and I have also provided that to the investigators – with the individual’s consent, of course. Numerous other people have contacted us in regards to other situations involving this same group of guys, and I’m still in the process of speaking to them all.
Here are a few more photos which address important aspects of the situation. Here’s where the Putnam County Special Enforcement Unit cut the lock on my client’s gate at the end of driveway, before driving towards the house in a white truck, and what appears to be two black Ford Explorer unmarked police cruisers.
Here’s where the police officers climbed through the window to get inside the house. They pushed in a window unit air condition. It was actually one of those indoor ACs, but it still requires a window unit for exhaust and drainage. This photos were taken immediately following the search.
Here’s where they yanked the surveillance camera cord. It’s of the type that has two plugs. One of the plugs was pulled out, and the other was ripped in half, leaving the connector still in place.
How do we know it wasn’t already like that? Remember the part of the video where the guy in the SWAT outfit was walking across the bridge? (5:41 in the video) When he gets to the end of the bridge, it freezes. That’s this actual camera. And the point at which it freezes is when the damage occurs to the camera. I originally thought that camera had survived. But no, that one was actually severed, and you see the moment it was severed.
Here’s the guy walking across the bridge:
And here’s the exact moment that camera was disabled:
As for what their defense is at this point, I don’t know. But self-proclaimed “Bailiff” of the Putnam Sheriff’s Department did confront me on social media and try to set me straight on the facts, and the law. He implied that the officers entered with the landlord’s consent. The only problem with that is, a landlord cannot authorize law enforcement to search their tenant’s residence. That’s Fourth Amendment 101, which is why a search warrant is still required even to search the hotel room of an overnight guest (minus a ticking time bomb or something) They can’t just ask the hotel manager for permission to search. A warrant is still required. Secondly, the landlord was questioned very early on, and denied knowing anything about it. That may have been a lie. But if it was, then they can point fingers at each other when it comes time to be placed under oath. But it still won’t be a defense to an illegal search by law enforcement.
As for a criminal investigation, I have no knowledge of any agency investigating them criminally. That doesn’t mean it’s not happening. But nobody has notified myself, nor my client, of there being one. That’s why I believe it’s important to share this information with the public. In the end, the citizens should be informed of what their government is doing. Or not doing.
Check out this new case. Police officer impersonation incident by a WV Division of Corrections CO / Parole officer. We met with investigators already, who were extremely concerned about what they saw here….
If you have any information, please contact us.
Just in case you haven’t seen this making the rounds yet, I uploaded this to Youtube. It’s too big for this site, and I’m done hosting videos directly to Facebook, because they censor everything these days. The video is pretty self-explanatory. We will be filing a federal lawsuit. If you know something, or you have a video of your own, or a similar incident, please let us know.
Here’s an interesting, and academic (for Constitution nerds), update on the Sizemore federal civil rights lawsuit, which had been in the news recently.
This is the one where the drug “task force” had found heroin in the client’s home, but the case was dismissed after a federal judge found that the officers had made numerous false statements to the magistrate in order to get the search warrant. This is also actually the case I last posted about, since I haven’t been posting much on here lately.
Should the fact that officers were found to have made false statements under oath to get a fraudulent warrant, have been allowed to go away quietly since drugs were actually found, or should something have been done about it? The news media wasn’t happy about it, necessarily, but I elected to do something – heroin or no heroin. And here’s why:
Either “equal justice under the law,” etched into the walls of the Supreme Court, is just decoration, or it actually is enforced and put into practice.
Here is the response brief we just filed to some of the defendants’ motion to dismiss. I really enjoyed writing this one, because it was as if I were back in my old baseball days, and being a kid who was bigger than most, the pitcher gave me an underhand slow pitch, just begging me to hit it out of the park. Maybe I’m missing something, but I don’t think so. I really look forward to reading the outcome of this one. I don’t think it’s going to turn out like they had hoped . . . .
The Charleston Gazette-Mail had an article this weekend on a New Jersey couple who were pulled over by a West Virginia State Trooper on their way to a casino. They had $10,000.00 with them. The state trooper took all but $2.00 and sent them on their way. He also took their cell phone (presumably to search it for evidence of a crime, such as drug dealing).
This highlights what is perhaps the ugliest, most unconstitutional, most nazi-ish, thuggish, and un-American behavior engaged-in by the government at the present time: asset forfeiture. This is the way it works. You get pulled over for a traffic offense. You have cash on you, or in the vehicle. The officer seizes the cash, because they consider the cash itself to constitute evidence of being a drug dealer. They don’t have to charge you criminally whatsoever. They then serve you with a notice that, if you want to redeem your cash, you have to contact the court and the prosecuting attorney, and formally claim the cash. In so doing, the process implies that have to explain to the court, and the prosecutor, where you obtained the money, etc. The theory is, that drug dealers are not going to claim the money. The the law enforcement agency gets to keep it, and the prosecutor’s office gets 10%. Talk about a conflict of interest . . . .
In reality, the law provides that in order to keep the currency which was seized from the citizens, the State, pursuant to W. Va. Code § 60A-7-703(a)(6) (1988), is required to demonstrate by a preponderance of the evidence that there is a substantial connection between the property seized and an illegal drug transaction. This finding is in addition to the initial finding of probable cause that an illegal act under the drug law has occurred. See Syllabus Point 4 of State v. Forty-Three Thousand Dollars, No. 31224 (W. Va. 11/26/2003) (W. Va. 2003).
Only after the State has filed a civil forfeiture petition, and met its’ burden of proof by a preponderance is the citizen required to prove how he/she/they came into ownership of the currency. Id. at 6.
In the case of the couple in the Gazette article, Dimities Patlias and Tonya Smith, they got nowhere until they contacted the media. The reporter, Jake Zuckerman, started making some phone calls, including to the prosecuting attorney, and voila, their money was returned in full. Now the couple is rightly pissed off, and much of the public is learning about this un-American scheme for the first time.
The Prosecuting Attorney of Jefferson County, who returned the money is a good guy. Kudos to him for doing the right thing after looking into it. I actually had an asset forfeiture case with him previously, and he returned the money in that case as well. I also represented some of his family members in a real estate related jury trial, which we won, thankfully. This is a problem in a national scale. This occurs everywhere, and is practiced by the federal government as well.
UPDATE 8/20/18: Our FaceBook post on the topic.
UPDATE 8/17/18: I obtained the Criminal Complaint from the incident. It is indeed signed by both the sheriff’s deputy who was the arresting officer, as well as the Summersville PD officer. It’s not a notarization, but it is a signature. While it doesn’t make sense as to why they did it that way, that process would be legal. The following is the full text of the narrative, which is sworn under oath as the probable cause basis for the arrest:
ON THE ABOVE DATE IN SUMMERSVILLE NICHOLAS COUNTY, WV, I CONDUCTED A TRAFFIC STOP ON A MAROON CHEVY COLORADO BEARING WV REG. XXXXXX FOR NO BRAKE LIGHTS. THE DRIVER WAS IDENTIFIED AS JEFFREY JONES. WHILE SPEAKING TO THE DRIVER I OBSERVED HIM TO BE DISORIENTED, DROWSINESS, CONFUSED, BLOOD SHOT EYES, AND HE DID HAVE SLURRED SPEECH. MY FIRST OBSERVATION HE WAS SWEATING PROFUSELY AND DID HAVE HIS HEAT ON IN HIS TRUCK. HE WAS ALSO FUMBLING HIS ITEMS AND DROPPING MONEY OUT OF HIS WALLET. I PERFORMED THE HGN TEST ON JEFFREY AND WHILE ADMINISTERING THIS TEST HE DID SHOW IMPAIRMENT. JEFFREY WAS TAKEN TO SRMC FOR A BLOOD DRAW. WHILE UNDER MIRANDA, JEFFREY DID ADMIT THAT HIS BROTHER KENNY HAD GIVEN HIM A PILL THAT HIS WIFE TAKES FOR ARTHRITIS AND PAIN. A DRE EVALUATION WAS DONE ON JEFFREY. THE INFORMATION PROVIDED IN THIS COMPLAINT IS BASED ON THIS OFFICERS INVESTIGATION.
According to Mr. Jones’ brother, they picked his truck up later that same day/night at the local impound for the exorbitant sum of $350.00, and it was driven home, with a vehicle following behind. The brake lights worked just fine. The narrative included no allegations of improper driving. That means, the only basis for the stop was for a improper equipment violation which didn’t exist. In other words, it appears to be a lie. Without improper driving, what other information did this deputy have to want to stop Mr. Jones? The only information he had was the color of Mr. Jones’ skin. This is unfortunate, but not unheard of. The same basis was used to stop my client Antonio Tolliver. That state trooper is now a former state trooper.
What does that mean? If the State/Prosecutor can’t prove that the vehicle had no brake lights, in light of testimony and evidence from Mr. Jones’ family and friends that the car’s brake lights worked just fine, the stop will have been illegal. Under the “fruit of the poisonous tree” doctrine, everything that happened subsequently, is inadmissible in court. Even assuming the blood draw was legal, which is a big “if,” and the supposed statement about the pill for arthritis and pain was legal, they cannot be used against Mr. Jones. The arrest, and everything which happened afterwards, is unconstitutional and illegal.
So he’s driving perfectly normal, gets pulled over for an equipment violation which doesn’t exist, gets put through field sobriety tests and supposedly fails. So why at that point didn’t they give him a breathalyzer? Instead they call Deputy Junk Science to arrive, who took a class on recognizing people who had taken prescription drugs? Then forcibly taken to a hospital and forcibly withdraw blood from his body? He was driving normally, and wasn’t bothering anyone. The only thing he did wrong was drive into a notorious speed trap, where officers are itching to pull over someone who looks like they’re coming down from one of the rust belt cities with a load of heroin. Which brings us back to racial profiling. It would be interesting to look at some of the other cases of stops on Route 19 in Summersville over the past few years.
Yesterday, WVVA ran a story about Jeffrey Jones, a man local to Greenbrier County, who had an unfortunate encounter with the police in Summersville, West Virginia – a place with the reputation as a well known speed trap extortion racket. As a disclaimer, I don’t represent him in any way, but I do know the man since he works at my local Kroger. He is the nicest guy, always smiling, and always helpful. Everyone loves him. What other grocery store employee has customers that take photos such as these?
These photos speak for themselves, which were posted on the WVVA website. From the article:
SUMMERSVILLE, W.Va. (WVVA) Jeffrey Jones of Lewisburg is no stranger to hard knocks. As a child, he battled Spinal Meningitis, a condition that left him 90 percent deaf and with one leg longer than the other.
“Growing up, I had Meningitis. Everyone always thought I was stupid because I couldn’t hear. And because I was the smallest in the class, everyone picked on me.”
Despite the physical limitations, Jones said he never misses at day of work keeping track of the carts at the Ronceverte Kroger; the same place where his family said he was hit by a car a couple years ago and broke a hip.
“He stops and checks on everyone everywhere he goes,” said his friend Brianna Barkley. “There’s not a person that’s a stranger. He spreads happiness and friendship to everyone he sees.”
That job may be in jeopardy after Jones said he was unlawfully stopped by a Nicholas County Sheriff’s deputy on Sunday, August 5th, for a broken brake light. He was arrested and charged with Driving Under the Influence (DUI).
Then there was a phone call from a local legislator, to the Attorney General’s Office on his behalf:
Through his work at Kroger over the years, Jones has made friends from all walks of life, including Greenbrier County Del. Jeff Campbell, (D) 42nd Dist., who on Tuesday, personally requested the West Virginia Attorney General’s Office for an investigation.
“I would like to see the charges dismissed. I would like to see the $350 he spent to get his truck out of impound reimbursed. I think his wages should be reimbursed. And I’d like to see an apology.”
Oops. So the Summersville Chief of Police contacts the news station and makes a stunning denial:
UPDATE: Summersville Police Chief John Nowak said Thursday his officers did not participate in the arrest of Jeffrey Jones on Sunday, August 5th.
Although Patrolman R.L. McClung with the Summersville Police Dept. signed both pages of the criminal complaint, the chief said the officer merely notarized the document for the arresting officer, Deputy J.D. Ellison with the Nicholas County Sheriff’s Dept.
Ok, say what? Your officer “notarized” a criminal complaint? Here is a sample Criminal Complaint, which is actually a form provided by the West Virginia Supreme Court, from a recent case of mine (which resulted in a large settlement and an officer being fired):
As you can see, there is no signature block for a “notarization.” Criminal Complaints, which are standardized forms meant to comply with state and federal constitutional requirements applicable to the process of putting a person temporarily behind bars, are signed by the “Complainant,” who is almost always a sworn law enforcement officer.
The Criminal Complaint notes that the complainant must be present in person before the Magistrate, who will authorize the arrest and subsequent incarceration, assuming the Magistrate believes probable cause exists based on the sworn written testimony/explanation offered by the Complainant/Police Officer.
In my 12 years of experience practicing law around the State of West Virginia, I have never heard of a police officer “notarizing” the Criminal Complaint of another police officer. And being a civil rights lawyer, I have examined probably thousands of Criminal Complaints. It would be understandable for one officer to draft and sign the complaint where there were multiple officers involved. They don’t all have to sign their name to the complaint. But I’ve never heard of another officer, from an entirely different agency, who wasn’t even present at the incident/arrest, to apply under oath for the signature of the Magistrate, which is effectively an arrest warrant. That would be hearsay, and would not establish probable cause. No competent Magistrate would sign such a Criminal Complaint. The only exception would be, if the Magistrate did not know because that fact was concealed.
I’m not posting Mr. Jones’ Criminal Complaint, but somebody has some explaining to do in Summersville. I wonder how many other arrests/tickets given by the county sheriff’s department were actually signed by a city police officer in Summersville, given their reputation as a well known speed trap extortion operation? Hmmm. Like all the old ways in West Virginia, it all comes down to money. Maybe when the legislature finishes cleaning up the Supreme Court mess, they can come follow this money trail in Summersville. I’m sure he isn’t the only victim – just one innocent enough to have people stand behind him.
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.
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:
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:
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.
In the courtroom with some of Isadora Beavers’ nieces and nephews immediately following the verdict:
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.
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.
Maybe it’s time for Cops and Prosecutors Part III – 2014 Update.