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.
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.
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.
About a month and a half ago, I mentioned that I was working on a petition for appeal that contained a factual scenario extremely similar to the Arizona v. Gant holding. Well, it was filed early this month, and now my client has authorized me to post a copy of the filed petition. I think it contains some interesting legal issues which have yet to be examined in West Virginia, one of which will be the use of Arizona v. Gant as it applies to “inventory” searches in West Virginia.
Additionally, this is an extremely odd case (factually). And its one of those where the police and the prosecutor really went after the guy and he ended up getting the proverbial “book” thrown at him. It illustrates the danger of jury trials, and the power of the prosecutor. If they want you punished, there are enough laws out there that they can bend the facts around, that they can turn you into a felon pretty quickly – not to mention a registered sex offender. And then they can charge you with multiple counts, basically restricted only by their whim. The only way to stop them is to appeal.
Also, a H/T to Tom Rist for assisting with the case.
In a 4-1 decision, authored by Justice Menis Ketchum – a Justice with criminal defense experience – which was filed yesterday, the West Virginia Supreme Court of Appeals actually acquitted a woman who had been convicted of murder in Cabell County, West Virginia.
A jury convicted Tanya D. Harden of first-degree murder in 2007, ignoring her argument that she acted in self-defense. She said Danuel Harden Jr., her husband of 11 years, told her that “nobody was going to walk out of the house that night,” including their two children. She apparently shot her husband with a shotgun while he was sleeping on the couch.
This was basically a “battered woman syndrome” self-defense case.
The justices’ decision acquitted Harden of murder charges, and ordered her released from prison immediately. She had been serving a life sentence with a recommendation of mercy.
Syllabus Point 3 of the Opinion held that:
Where a defendant has asserted a plea of self-defense, evidence showing
that the decedent had previously abused or threatened the life of the defendant is relevant
evidence of the defendant’s state of mind at the time deadly force was used. In determining
whether the circumstances formed a reasonable basis for the defendant to believe that he or
she was at imminent risk of serious bodily injury or death at the hands of the decedent, the
inquiry is two-fold. First, the defendant’s belief must be subjectively reasonable, which is
to say that the defendant actually believed, based upon all the circumstances perceived by
him or her at the time deadly force was used, that such force was necessary to prevent death
or serious bodily injury. Second, the defendant’s belief must be objectively reasonable when
considering all of the circumstances surrounding the defendant’s use of deadly force, which
is to say that another person, similarly situated, could have reasonably formed the same
belief. Our holding in Syllabus Point 6 of State v. McMillion, 104 W.Va. 1, 138 S.E. 732
(1927), is expressly overruled.
In Syllabus Point 4 of the Opinion, the Court held that:
Where it is determined that the defendant’s actions were not reasonably
made in self-defense, evidence that the decedent had abused or threatened the life of the
defendant is nonetheless relevant and may negate or tend to negate a necessary element of
the offense(s) charged, such as malice or intent.
In Syllabus Point 5 of the Opinion, the Court held that:
An occupant who is, without provocation, attacked in his or her home,
dwelling or place of temporary abode, by a co-occupant who also has a lawful right to be
upon the premises, may invoke the law of self-defense and in such circumstances use deadly
force, without retreating, where the occupant reasonably believes, and does believe, that he
or she is at imminent risk of death or serious bodily injury. In determining whether the
circumstances formed a reasonable basis for the occupant to believe that he or she was at
imminent risk of death or serious bodily injury at the hands of the co-occupant, the inquiry
is two-fold. First, the occupant’s belief must be subjectively reasonable, which is to say that
the occupant actually believed, based upon all the circumstances perceived by him or her at
the time deadly force was used, that such force was necessary to prevent death or serious
bodily injury. Second, the occupant’s belief must be objectively reasonable when
considering all of the circumstances surrounding the occupant’s use of deadly force, which
is to say that another person, similarly situated, could have reasonably formed the same
belief. Our decision in Syllabus Point 2, State v. Crawford, 66 W.Va. 114, 66 S.E. 110
(1909), is expressly overruled.
You know, sometimes prosecutors should come to the conclusion that the guy deserved it. They should have given this woman a break. She was protecting her children. The police wouldn’t have stopped him from killing her, or the children. That’s why we have guns for self defense. It’s each of ours individuals responsibility to protect ourselves and our children. The prosecutors were trying to victimize these children by turning them into orphans.
As the Appellant/Defendant’s brief noted (caution: there are some gruesome photographs):
From Tanya Harden’s arrest to her sentencing, the State has never disputed an essential fact – that the decedent threatened to kill his wife and children and used his fists and shotgun to brutally beat his wife just before he died. The injuries suffered by Tanya Harden, including facial fractures, were preserved on photographs taken the day of her arrest and made part of the record in this case, and were attested to by the State’s own witnesses.
This is our job as defense attorneys: to protect those of the Lord’s children who have fallen short of perfection from the wrath of those who believe they have attained it. And by those, I am talking about prosecutors. And Ms. Harding may have fallen short of perfection, but I can’t say that I wouldn’t have done the same thing given the circumstances.
There was a story that I saw yesterday in the Register-Herald titled “Berkeley delegate wants judges’ donations disclosed in trials.” Apparently, as per a bill introduced by Delegate Jonathan Miller, “[b]efore the first shred of evidence is put before a jury, members would know how much — if anything — opposing attorneys dumped into the presiding judge’s campaign chest.”
What I want to get is disclosing contributions to sitting judges from attorneys, first and foremost,” Miller, R-Berkeley, said Monday. “They are very involved in these lower races, circuit judges and family court. And I want disclosure to be compelled.”
Miller is labeling his proposal the “Jim Kramer Rule,” named after the investment guru, who, under Securities Exchange Commission rules, must disclose his personal holdings before pitching any stock.
The proposed legislation purportedly would not apply to criminal cases – not that it would be constitutional anyways…. This legislation begs the question: what in the heck is the point of doing this? The reason that we have a jury in civil trials in West Virginia, is to decide contested issues of fact. Of course the lawyers always believe that the trial judge favors and/or helps one side or the other somewhat during the trial. But from the point of view of the jury, the judge is supposed to be neutral, and is only assisting them in doing their job. In fact, the judge will instruct them not to try and speculate as to what he thinks about the case. To instruct the jury from the beginning on which lawyer contributed campaign donations would confuse the jury from the start, and would possibly cause prejudice to an innocent party. The lawyer is only representing the client. Now if the client has some sort of improper connection with the judge, that could be different, in which case there already exists a procedure for the recusal of a judge if there exists a conflict.
Regardless, there’s no way this legislation, if passed, would get through the West Virginia Supreme Court of Appeals – all of whom are judges who arrived where they are, in part, through campaign contributions.
“I could get into trouble for telling you this, but…”
“Delete this email immediately.”
“I really shouldn’t put this in writing.”
“Don’t tell So-and-So.” Or, “Don’t send this to So-and-So.”
“She/He/They will never find out.”
“We’re going to do this differently than normal.”
“I don’t think I am supposed to know this, but…”
“I don’t want to discuss this in e-mail. Please give me a call.”
“Don’t ask. You don’t want to know.”
“Is this actually legal?”
Electronic documents are increasingly becoming an important aspect of all types of litigation, including criminal cases. But illegally accessing that information has also become a crime in and of itself – and a federal one at that. Thus, I’m working on a future post entitled, “101 Ways to Get Into Trouble Using Email.” In summary, it’s not a good idea to put anything in an email that you wouldn’t be comfortable having displayed to a panel of twelve jurors on a huge screen.
Houston Criminal Defense Lawyer, Mark Bennett, posted yesterday regarding this story from Johnson County Tennessee, where Sheriff’s Deputies have been arresting people and confiscating iphones after pictures are taken of the cops in public.
This reminds me of a West Virginia case I am dealing with right now where a man videotaped the police shooting tear-gas grenades into his home. The police then broke down the door, shot the man with a taser, and attacked the man with their k-9. Then the guy was dragged off and thrown in jail. Guess what the charge was? Murder? Kidnapping? No, he was alleged to have made a harassing phone call. Guess what happened to the video and the video camera? The cops seized it with the consent of the prosecuting attorney – and it has yet to appear or to be provided to the defense. The problem is, that the 911 logs prove that the officers found it, and called the prosecutor requesting permission to seize it. Do you think they could be holding out until after the statute of limitations runs on a civil lawsuit? Or do you think they “misplaced” it somewhere in the evidence room?
So for those of you who think that law enforcement corruption in West Virginia is a conspiracy theory, please see the above paragraph. It exists. If any State or Federal investigators are at all interested in this case, please feel free to contact me and I will provide you with all of the particulars. But I won’t hold my breath with respect to the State, since they would be the ones getting sued. And I suspect the feds are too busy to worry about West Virginia. Like they say, “if you investigate one case, everyone else will want their case investigated as well…,” and that could take a while.
The Charleston Daily Mail published a story today about another child porn bust in Kanawha County. This is proving to be an ever-expanding area of criminal law, both nationally and in West Virginia.
Robert Eugene Simmons, 32, was arrested by members of the West Virginia Internet Crimes Against Children task force after giving officers permission to search his computer, according to the criminal complaint.
The arrest comes less than a week after the first child pornography sting in the Kanawha Valley where ICAC officers used peer-to-peer file sharing to observe child pornography distribution. This type of observation has already been successful elsewhere in the state.
The article stated that: “Simmons, and others arrested for distributing child pornography, may face more charges after their computers’ hard drives are examined, said State Police Sgt. P.C. Koerner, who aided in Tuesday’s arrest.”
For any defense attorneys who have not yet faced charges such as these, here is what they have been doing: they seize the computer, it then is sealed and placed in the State Police detachment evidence room. They then have the option of doing a “live preview” of the hard drive to essentially take a peek at what could be on the hard drive. Then the computer is transported to Huntington, West Virginia, to the state’s forensic computer expert. At that point, the proper procedure is to make a “clone” of the hard drive before anything else is done with the computer.
The article further stated that “Each file shared over the Internet has a fingerprint attached to it. What we’re able to do is, we’re able to track where those files are going. As a computer forensics expert will tell you, each file has should be “hashed” which gives you this “fingerprint” – and if that is not done, then there could be some deficiencies with the evidence.
With child porn charges, defendants can be charged in state court, or they can be charged federally. The federal charges bring a minimum sentence of 10 years. If the charges are federal, it can alter your access to the evidence (i.e., computer). Federal prosecutors demand that the defendants attorneys or experts not be allowed to possess their own “clone” of the hard drive, as can be allowed if the charges only exist at the state level. I’m not sure what makes the federal prosecutors God, but for some reason the state police and defense experts are afraid to disobey the AUSA’s demands.
The protocol they use is this: they first make a clone of the hard drive, then the defense clone gets placed in a safe in the evidence room; the defense is given the only key, then when they want to analyze the computer, you are forced to do it under supervision of the state police. Now, if the charges are in state court only, then you can get an order from a circuit court judge to possess a clone of the hard drive. By the way, the feds insist on this even if no child porn has yet been found on the hard drive.
Speaking of experts, it is extremely important to retain an defense expert from the very beginning. The state has an expert are their side from the very beginning. You must have a forensic computer expert who can observe any and all manipulation of the hard drive by the state’s experts, as well as perform his or her own analysis of the hard drive. The important thing here is to prevent spoilation of evidence that could be exculpatory, and to foreclose the possibility of any manufacturing of evidence by the state, as well as to be able to give an opinion at trial regarding the reliability of the state’s procedures. If anyone is in need of an expert for computer-related charges, contact me and I can put you in touch with a very good one.
I think this is a trend we will continue to see in West Virginia, both with child porn charges, and with online solicitation charges. There is not much case law yet in this state for these types of cases, so many of the defenses have not yet been tried as they have in other states.
You can read the full article from the Charleston Daily Mail here.
Note: A couple of things stick out here: One, the victim officer and his fellow officer, Reynolds, both had been drinking according to the testimony at trial. Then they drove the murder scene where the victim attempted to make an undercover buy. Who was driving? The article didn’t say, but the obvious conclusion is that someone was drinking and driving. If Reynolds was the driver, then why wasn’t he investigated for DUI? I think we all know the answer to that. Had it been you or I, we would have been arrested.
Secondly, Dr. Iouri Boiko, who was at the time of the crime working for the State Medical Examiner’s Office (See my prior posts regarding this office here) testified that he believed that the victim’s .07 BAC level at the time of his death was that of a “practically sober person.” What a joke. Please, all WV DUI lawyers out there: at your next DUI trial subpoena Dr. Boiko as an expert witness, you know that you can at least get him to testify that a .07 is “practically sober.” The doctors from the State ME’s office are about the most untruthful and scandalous quacks ever to have an M.D. (or D.O.). The entire profession should be ashamed of these people who work for the people of the State of WV, but who scandalously slant their testimony so as to deny justice to those charged with crimes. I’m not defending the monster who committed this crime, just pointing out that our system is severely flawed. We absolutely must insert some neutrality into the State ME’s office and the State Forensic Lab.
Lastly, there needs to be accountability for the police. Is it good policy to have these undercover narcotics officers roaming around in police vehicles drinking, driving and making undercover buys with their girlfriends present? Does anyone see a problem with this? Having previously investigated pattern or practice police misconduct for the Department of Justice, it disturbs me that the Beckley PD didn’t turn the investigation of this incident over to the FBI, or at least the WV State Police. Once more, what sucks (for lack of a better term) for this guy, Leftwich, and for his co-hort who was already convicted, the judge is not allowing the defense to make an issue of these questions. If you are going to try someone for murder, at least let them have a shot at defending themselves. Again, I’m not defending either of these guys, but what if it was you, or your son or daughter, on trial? Believe it or not, innocent people do get charged with crimes – especially in West Virginia. – John H. Bryan, West Virginia Criminal Defense Attorney.
Raleigh County chief deputy prosecutor Kristen Keller displays a photograph of the area where Beckley Police Detective Cpl. Chuck Smith was shot to death on Aug. 29, 2006. Cpl. Will Reynolds, left, was one of two witnesses.
Rick Barbero / The Register-Herald
“After I saw him take out his badge, my reaction was, ‘Something’s gone wrong’”
LEFTWICH MURDER TRIAL
By Michelle James
A Beckley police officer who witnessed the shooting death of Detective Cpl. Chuck Smith testified Tuesday he sensed something was wrong just seconds before his friend and fellow officer was gunned down on a city street.
“After I saw him take out his badge, my reaction was, ‘Something’s gone wrong,’” Cpl. Will Reynolds said, continuing, “because there was no reason he would take his badge out.”
Reynolds testified on the second day of Thomas Leftwich’s murder trial. Leftwich is charged with first-degree murder, conspiracy and felony use of a firearm in the shooting death of the 29-year-old Smith in the early-morning hours of Aug. 29, 2006.
Leftwich, 25, is claiming self-defense. According to his attorney, Mark Hobbs, Leftwich was afraid he was about to be robbed and thought Smith might be reaching for a gun.
Reynolds recalled the hours leading up to Smith’s death. The two off-duty officers and close friends went out for dinner and visited a number of Beckley nightspots. It was at the last spot they visited, Pikeview Lounge, Reynolds said, where Smith was approached by a man who Reynolds would later learn was Timothy Blackburn.
“Chuck came over to me and told me we had to go,” Reynolds told the court, explaining Blackburn had planned to buy narcotics from Raushan McDougald, who was well known to narcotics officers as “Jellybread.”
Reynolds and Smith by that time had been joined by Smith’s then-girlfriend, Jasminda Gonzalez, who went along with the two officers.
“(We had) no plans of arresting ‘Jellybread,’” Reynolds testified. “We planned to observe the incident … and start an investigation.”
Reynolds told the court “Jellybread” was never located, adding the men instead encountered Michael Martin, who offered to help them purchase drugs. Martin was convicted of murder in December and sentenced to life in prison.
“He said, ‘Are you looking?’” Reynolds said of Martin, explaining that was street slang for drug dealers. “I said, ‘No,’ and Chuckie said, ‘Yes.’”
Shortly thereafter, Reynolds said, Martin led the three, in Smith’s police vehicle, a Jeep Grand Cherokee, to a parking lot at the corner of South Fayette Street and Willow Lane.
Reynolds said Smith walked with Martin across Willow Lane to the foot of a stairwell leading up to a house on top of a hill, now known to be the Leftwich residence.
“Chuckie looks at me and says, ‘I’m in, I’m out,’” Reynolds recalled, explaining those words confirmed there would be only a transaction but no arrest.
As Smith and Martin stood at the base of the steps, looking up at an individual later identified as Leftwich, Reynolds heard what he called a “brief confrontation of words,” saw Smith reach into his pocket and show Leftwich his badge. He then heard “the first shot.”
After the shots were fired and both Martin and the gunman fled, Reynolds moved Smith across the street in an attempt to get him to safety, he said. He also moved the vehicle to use as a shield.
Reynolds testified he checked Smith to see what kind of wounds the officer had received.
“I check his heartbeat and his heart is beating really fast and it just stops,” an emotional Reynolds recalled. “I felt a warm substance running down my leg in my shoe.”
“Blood,” Reynolds responded when asked by chief deputy prosecutor Kristen Keller what that substance was.
Leftwich’s attorney, Mark Hobbs, questioned Reynolds as to how much alcohol he, Smith and Gonzalez had consumed, and why Gonzalez was with them.
Reynolds testified he consumed beer, but said he did not believe any of the three was intoxicated. He said he saw Smith consume only a small mixed drink with dinner.
Dr. Iouri Boiko, who at the time of Smith’s death worked with the state medical examiner’s office, told the court that of the four bullet wounds Smith received, the most damaging was to his left chest, which perforated both lungs and damaged his heart.
Responding to Hobbs’ inquiry of Smith’s .07 blood alcohol level at the time of his death, Boiko said he believed that BAC level was that of “practically a sober person.”
Dr. Michael Kelly, chairman of emergency services at Raleigh General Hospital, told the court the first EMS record after Smith was shot was at 4:32 a.m. and reported no cardiac activity, no blood pressure and indicated Smith was not breathing. Kelly said Smith arrived at the hospital about 15 minutes later and was pronounced dead at 4:56 a.m.
Raleigh County Sheriff’s Detective Cpl. J.C. Canaday and State Police Sgt. Craig Light testified regarding two search warrants obtained for the Leftwich residence in the hours after Smith’s death.
Based on information from Reynolds that the gunman had come from the house on the hill and had vanished in the same direction, Leftwich’s residence was searched.
During the first search, Canaday said, residents were removed from the home and Thomas Leftwich approached him, confessed he had shot Smith and showed him where he had hid the weapon.
Canaday read a list of items recovered from the residence during the two searches, including shirts, a cell phone, guns, ammunition, counterfeit bills and a bullet-ridden target of a police officer.
Matthew White, a firearm and toolmark examiner, testified the bullets that struck Smith came from Leftwich’s Smith & Wesson .357.
State Police Senior Trooper R.A. Daniel testified regarding “background” checks done on 19 weapons seized from the Leftwich residence.
Daniel said the murder weapon and two other weapons had been reported stolen. Two weapons, he said, were sold to Leftwich, and it was not determined if the others had been stolen.
Hobbs countered that person-to-person sales are not always noted and Daniel had no evidence proving the other weapons had been stolen.