You never really know what did it…

After about an hour and a half of deliberations on Friday, my Greenbrier County jury came back against my client in a civil jury trial. I really thought we had a good chance of winning. But such is the character of civil juries. In civil cases, you never really know what the jury is going to do. They are unpredictable. They could go either way based on something that both sides never even thought was important. On the other hand, in criminal cases, the jury 90% of the time is going to convict. That is what you can expect. Your struggle is one of the underdog.

There was something unique about this jury though – it had a criminal defense attorney on it. Usually it is a bad idea to leave a lawyer on a jury, and it may have been this time. I made a gut decision to leave him on based on a subtle nuance of the law that I thought he would understand and explain to the other jurors. But I suppose that is a two-way street. And then again, it could have been some fatal flaw in my client’s factual case that swung the jury. The fact is, you never really know.

There is no second place, but it is always good to know that in this situation your client is satisfied that you did the best that possibly could have been done given the circumstances. Sometimes you are just backed into a corner, and in this case, there was no possibility of settlement, so it was just up to the jury. And good or bad, you usually just have to live with the jury’s decision.

– John H. Bryan, West Virginia Attorney.

Judge Halts Trial Because Jurors Were Playing Sudoku

Although this was in Australia, what would any government expect when you make jurors sit for a trial for 66 days? What kind of crime is worth spending a million dollars to prosecute? Drug conspiracy? If as the prosecutor, you reach day 66 of your drug conspiracy trial, you have officially bored the hell out of the jurors – not to mention put them out of business and caused their families to lose their home in foreclosure. Who can afford two months of jury duty?

You can read the full article here.

– John H. Bryan, West Virginia Attorney.

Braxton County Magistrate Convicted After Jury Trial

From the Charleston Gazette:

A jury found a Braxton County magistrate who is up for re-election next week guilty of attempted retaliation against a state witness Wednesday.

Prosecutors charged Carolyn Cruickshanks with conspiring to retaliate against Philip Dailey, who testified against her son, Jordan Grubb, in a drug case.

Cruickshanks reportedly delivered a copy of Philip Dailey’s plea agreement and a transcript of his plea hearing to the jail, where Grubb hoped other inmates would punish Dailey for being a snitch.

It always amazes me that these small-town political conspiracies involving corrupt public officials actually take place in West Virginia. Then, the corrupt official still runs for office as they are on trial…. Unbelievable.

Read the full two-page article here.

– John H. Bryan, West Virginia Attorney.

Mercer County Teacher Charged With Sexual Abuse- Illustrates Abuse of the Law

From the Charleston Daily Mail:

A Montcalm High School teacher accused of having a relationship with a student faces sexual abuse and abduction charges.

State Police First Sgt. Gary Tincher says 30-year-old Christi Lee Williams was arrested in late April.

Williams remains free on bond after being charged with sexual abuse by a parent, custodian and guardian and abduction of a student within 1,000 feet of a school.

Tincher says Williams is accused of having a relationship with a 16-year-old male student who allegedly left school property with her.

Tincher says the teacher has been suspended from her job.

What is the deal with young, attractive teachers across the country having these sexual relationships with young boys? I can’t remember hearing anything like this when I was in high school – other than in a Van Halen song.

Let’s look at the charges: First, abduction of a student within 1,000 feet of a school. Okay, that charge is garbage. The kid was 16 – old enough to drive, and actually 16 is the age of consent. The allegations are that he went willingly. Prosecutors and legislators can make up whatever law and charges they want, but the fact is that there was no abduction. This is just a garbage charge to help them get a plea.

Secondly, sexual abuse by a parent guardian or custodian. This is the most abused and misused charge on the books. The reason is this: in almost every situation, like it or not, the legal age of consent in West Virginia is 16 years old. That means that ignoring relationships, this 16 year old kid can have sexual relations with whomever he wants. However, if there is a relationship, then all of a sudden the other party goes to prison for 10 to 20 years. That’s right, that is the punishment for this charge (something that you are not allowed to tell the jury). So, if the prosecutor alleges the other party is a babysitter, teacher, whatever – even if the kid is 16 or 17 and has his own car and drives all over the place, it then becomes punishable by 10 to 20 years. This is an abuse of the law. The charge was meant to cover awful situations where parents or actual guardians abuse children under their care. The problem is that the statute was written much to broadly, thus allowing police and prosectors to abuse it. For instance, this woman is facing 10 to 20 on that charge. Under the statute, technically, she can be convicted on it. The jury never gets to know that she will get 10 to 20. They will assume she will get probation, or maybe 6 months or a year. She will get convicted on the charge, despite the unfairness of it. The end result is, that her lawyer will most likely advise her not to take the chance of going to trial, and to accept the plea offer of misdemeanor battery with a sexual motivation, or something like that, which will put her in jail for a year and make her a registered sex offender for life.

Read the full article here.

– John H. Bryan, West Virginia Attorney.

Martin Found Guilty in Fayette County Triple Murder Case – Prosecutor Attacks the 2nd Amendment

From the Register-Herald today:

Its no big surprise that after just under two hours of deliberations, the jury of seven women and five men found Gary D. Martin, 57, of Stringtown Road, guilty of two counts of first-degree murder and one count of second-degree murder.

Obviously the jury didn’t buy the self defense argument. However, they did find Martin guilty of second-degree murder for killing the victim that had the gun in the holster. Thus, the jury was not convinced beyond a reasonable doubt that Martin killed that particular victim with premeditation. They were convinced with respect to the other two victims however.

This result is no surprise given the evidence. However, I was surprised to read what Fayette County Prsoecutor Carl Harris “thundered” in his closing argument. The Register-Herald quoted him saying as follows:

“Only two people are alive at the end of that day because the other three are dead,” Harris thundered in closing arguments. “This is a weapon for killing,” he added, holding up the AK-47. “This is not a weapon for target practice. This is a military weapon. You don’t pull out a pistol when you’re facing a weapon like this. Self-defense (as a legal defense) doesn’t work when you shoot someone in the back.”

According to Carl Harris, an AK-47 is only a “weapon for killing” and cannot be used for target practice as it is purely a “military weapon.” Carl Harris should be ashamed of himself. Law-abiding citizens across the State of West Virginia own so-called “assault weapons” such as AK-47s and AR-15s, which they do use for target practice, self defense, or just to collect. It is just a semi-automatic rifle, similar to many others that West Virginians and other Americans own and use across the country every single day. Attention Fayette County residents: hide your guns because Carl Harris is probably looking to prosecute you for harboring “weapons for killing.” Don’t try to get some target practice in, you may end up in prison. Carl Harris needs to realize that it is perfectly legal to own that particular gun, as well as many others, and he needs to keep his anti-gun feelings to himself, and out of the courtroom.

Read the full article here.

– John H. Bryan, West Virginia Attorney.

Prosecution Witnesses Testify in Martin Murder Trial in Fayette County

From the Register-Herald today:

Fayette County prosecutors presented 16 witnesses Monday and explained that they plan to call just one more today in the triple-murder trial of a Hico area man accused of gunning down three young men with an AK-47 semi-automatic rifle last Memorial Day on the road in front of his home.

Gary D. Martin, 57, of Stringtown Road, is charged with three counts of first-degree murder in the May 28 shooting deaths of Dustin Tyler Hughes, 22, of Hico, Christopher Lee Legg, 23, of Hico, and Carl Blaine Cox Jr., 24, of Edmond.

The defense is claiming that since a Glock pistol in a holster was found one one of the victims, that the shootings were justifiable homicide – or self defense. However, there are some problems with that defense; namely, that the pistol was found shot and damaged with the holster. The article doesn’t say whether the gun was actually still in the holster or not. If it was, then self defense would be a tough row to hoe. If the gun was not in the holster, then self defense would be an easier case. Reportedly, there were seven rounds in the magazine, which holds nine. So it is possible that the victim shot two rounds. However, none were found at the scene (but that still doesn’t mean they weren’t there). I wonder if they tested the Glock for gunshot residue – or the victim’s hands for gunshot residue. That could prove almost conclusively whether or not he fired a gun. I would hit hard on that if I were one of the defense attorneys. You will see a pattern of sloppy investigative work and repeated failure by the State to do all of the forensic testing or evidence collection that could have been done. Your theory almost has to be that it was self defense, and the State cannot prove beyond a reasonable doubt that it was not self defense, because they failed to do all of the testing that could have proven it.

Of course, all of this is assuming you have a fair and impartial jury. See my earlier posts regarding motions for change of venue. This would have been a good case for one.

Another problem with the defense is that there were three victims shot to death. Even if one of the victims had threatened or shot at the defendant, it would not have been justifiable to shoot all three to death. Yet another problem is the statements made to the passing motorists and EMT workers afterwards.

You can read the full article here.

– John H. Bryan, West Virginia Attorney.

What’s With the Thefts of Catalytic Converters in West Virginia?

You know times are getting tough when society’s derelicts stop burglarizing homes and robbing gas stations and begin stealing catalytic converters off of cars and electrocuting themselves trying to get copper wire off power lines.

Actually, from the incessant loud vehicles driving throughout some ares of West Virginia, I wasn’t aware that there were that many cars around that still had catalytic converters. It must be a right-of-passage for many high school sophomores or juniors to buy a 90’s model Mustang or F-150, and take off the muffler and catalytic converter, to therefore make it excruciatingly annoying to everyone else around them. Then, once they are off, they are pretty much off for good.

In the Register-Herald today, there was a story that police have arrested five members of a catalytic converter theft ring. Their names were Billy Jack Smith, 23, of Midway, Billy Price, 25, of Coal City, Nicholas Dale Bragg, 21, of Beckley, and Jeremy Allen Sanger, 25, of Hilltop.

They were charged with grand larceny, which is basically stealing something worth more than $1,000. What is the value of a catalytic converter? Are they basing the value of the catalytic converters on their black market value? Their individual prices if bought as new? The cost for buying a new one and installing it on the victim’s vehicle? That may be a jury issue. If either of the defendants can convince the jury that, although they stole the converters, the value was under $1,000, they would only be convicted of misdemeanors.

Read the full article here.

– John H. Bryan, West Virginia Attorney.

Not Guilty Verdict in Summersville Sexual Abuse Case

Yesterday Richard Workman, 40, of Summersville, West Virginia, was acquitted on charges of first-degree sexual abuse and sexual abuse by a parent guardian or custodian after a jury trial. The jury deliberated less than an hour before returning the not guilty verdict.

Reportedly, there was no physical evidence corroborating the testimony of the alleged victim. The alleged victim, who testified, was ten years-old. Assistant prosecutor Kelly Hamon said during closing arguments the girl had no reason to lie or to make up a story about Workman. Hamon also said Workman had two years to work on his story and was unable to testify without the aid of a written time line.

These are the most frightening cases imaginable. These charges will put people in prison for the same amount of time as first or second degree murder. However, unlike murder cases, the State does not collect a large amount of evidence. Prosecutors often rely solely on the testimony of alleged victims. The problem is, that without corroborating evidence, how can that be evidence beyond a reasonable doubt? Prosecutors like to rely on the argument that the alleged victim “had no reason to lie or to make up a story” about the defendant. The fact is, that it has been documented time and time again that some children will lie and make things up. Does it matter why they are doing it? No, it only matters that they could be making it up and there is no corroborating evidence.

In these types of cases (in West Virginia), the defense can give a special instruction to the jury – called a “Perry Instruction” informing the jury that if they believe that the testimony of the alleged victim is uncorroborated, they should scrutinize that testimony with “care and caution.”

This case is very similar to a case that I tried earlier this month, after which my client was also found not guilty. People don’t realize that in order to be found “not guilty,” all 12 jurors have to unanimously return a verdict of “not guilty.” Needless to say, it can be very difficult to get 12 people to agree on anything. The goal of the defense attorney in these cases is to pound into the jurors’ heads the fact that the prosecution has the burden of proof to prove the defendant guilty “beyond a reasonable doubt.” This is not always an easy job, because jurors want to listen to the alleged victim testify, and then listen to the defendant testify (which, by the way, the defendant almost always has to testify in these cases) and then compare the two. They tend to choose the one they most believe. Their duty, however, is to compare the alleged victim’s testimony and the state’s lack of evidence against the “reasonable doubt” standard – which in reality should be a difficult burden for the state.

However, for every acquittal, there are probably several others who are wrongfully convicted on evidence that was far less than a “reasonable doubt.”

Read the entire article from the Register-Herald here.

– John H. Bryan, West Virginia Attorney.

Greenbrier Grand Jury Rejects Felony Charge for Sawyers

From today’s Register-Herald:

Greenbrier jury says no to felony charge for deputy

Christian Giggenbach
Register-Herald Reporter

LEWISBURG — After meeting nearly six hours Tuesday, a special grand jury rejected two possible felony indictments against a Greenbrier County sheriff’s deputy accused of severely beating Prosecutor Kevin Hanson and instead returned a true bill on a less serious misdemeanor charge of battery.

Deputy Kevin Lee Sawyers, 37, now faces the same charge originally filed against him last August before State Police upgraded the misdemeanor to a felony charge of unlawful wounding, defense lawyer Tom Czarnik said.

“The special grand jury rejected the more serious felony charges of malicious wounding and unlawful wounding,” Czarnik said afterward. “I will be asking for an early trial for my client before the May 13 primary.”

Sawyers was charged with battery after allegedly beating Hanson for more than four minutes in the driveway of his estranged wife’s Lewisburg home. Sawyers, a seven-year deputy who returned home last year after serving in Iraq, had previously filed for divorce from his wife, Amy Sawyers, who is employed as a legal assistant for Hanson.

Hanson said in September that he was at the house to pick up a dog to care for it over the weekend. He said he did not start the fight.

He spent several days in a local hospital recovering from his injuries, which included a broken nose, separated shoulder, bruises and lacerations, according to police.

Hanson, who first won office in 2001, is currently campaigning for re-election.

Special prosecutor Dan Dotson of Braxton County said Tuesday the misdemeanor trial for Sawyers will now likely go forward despite the setback on the felony charge.

The grand jury also rejected a misdemeanor simple assault charge against Sawyers, which carries the lightest possible sentence, he said.

“Do I agree with the decision? Probably not. But I respect the decision the special grand jury made today,” Dotson said. “The matter will likely go to trial now because he really doesn’t have anything to lose.”

While grand jury proceedings are private, Dotson did comment when asked why the special panel was out for such a lengthy period of time.

“Because of the nature of both the victim and the defendant, this was not a typical special grand jury. There were a lot of facts that were diametrically opposed and also a bunch of side issues that are not normally present,” Dotson said. “I did not want to be accused of not wanting to put everything there was about the case out there in the open.”

After Chief Circuit Judge James J. Rowe announced the decision of the nine-woman, six-man special grand jury in open court, the defendant was called to the front of the courtroom.

“I would like to proceed with the arraignment, but because of the nature of the alleged victim (Hanson), it is inappropriate for me to do so,” Rowe said.

Rowe said he will ask the state Supreme Court to appoint a special judge to hear the case.

Sawyers has been on paid administrative leave since his arrest.

Sheriff Roger Sheppard said a battery charge or conviction would not make Sawyer ineligible for duty as a deputy, but another legal problem could preclude him from coming back on the force.

“He’s still under a protective order and can’t possess a firearm,” Sheppard said. “That’s now the big hold-up before bringing him back on the force.”

Court records indicated Amy Sawyers filed a domestic protective order against Kevin Sawyers shortly after the August incident. She was present during the alleged fight, but no charges were filed against Kevin Sawyers in regard to her.

Czarnik said he was ready to “try this case tomorrow,” and looks forward to a jury trial.

“The felony charges could not be won,” he said. “And I don’t expect anyone to win the next one, either.”

Sawyers remains free on $2,500 bond and faces up to a year in jail if convicted.

Accused Cop Killer To Claim Self Defense

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State Police Capt. Scott Van Meter, left, looks on as chief deputy prosecutor Kristen Keller asks Raleigh County Circuit Judge H.L. Kirkpatrick to disallow any negative commentaries on the character of the late Beckley Police Detective Cpl. Chuck Smith Thursday during pre-trial motions in the Thomas Leftwich murder case. Leftwich is accused of shooting Smith to death during an Aug. 29, 2006, undercover drug operation.
Rick Barbero / The Register-Herald

From the Beckley Register-Herald:

Note: What the defense is getting at here is allegations that the victim narcotics officer was not acting entirely in the capacity of a police officer when this happened. It is claimed that the victim was at a bar drinking prior to the shooting, and that when the shooting happened, he was unarmed, and his girlfriend was in the car several steps away, along with his partner, who was also purportedly unarmed at the time.

If the defense is allowed to bring in some of these facts – which inarguably are in violation of the police operations manual, then it enables them to change the scenario from undercover cop killed in the line of duty, to off duty cop killed under questionable circumstances. This will be absolutely necessary if the defense is going to present self defense to the jury.

However, it doesn’t look like the Judge is going to give the defense much latitude with this argument. Regardless, his co-defendant was already convicted, and he had a much better chance of getting off because he wasn’t the shooter. He probably will inevitably be convicted, as he should. But its possible he will get convicted of 2nd degree murder if the jury runs with any of these facts. – John H. Bryan, West Virginia criminal defense attorney.

Accused cop killer to claim self-defense

Pre-trial motions heard in 2006 shooting of Beckley police detective

By Michelle James
Register-Herald Reporter

Two hours or so after he fired the shots that took the life of Beckley Police Detective Cpl. Chuck Smith, Thomas Leftwich told State Police Capt. Scott Van Meter he thought Smith might have been reaching for a weapon.

“I thought he was reaching for a gun,” Leftwich told Van Meter just before 7 a.m. on Aug. 29, 2006. “I didn’t know what he was reaching for.”

Van Meter read Leftwich’s short statement Thursday during pre-trail motions in Raleigh County Circuit Court.

Leftwich is charged with one count each of first-degree murder, conspiracy and use of a firearm in the death of the 29-year-old Smith.

During Thursday’s hearing, his attorney, Mark Hobbs, told the court the planned defense during the trial, which is slated to begin March 10, will be self-defense.

Hobbs said “it was all about (Leftwich’s) state of mind at the time” of the shooting, adding Smith did not identify himself and was fumbling in his pocket.

Although toxicology reports on Smith showed his blood-alcohol content was below the legal limit, Hobbs requested a sample of his blood in order for the defense to perform its own testing.

Chief deputy prosecutor Kristen Keller argued “BAC is irrelevant,” adding even if the toxicology is disputed, it doesn’t mean Smith’s death was justified.

Hobbs, saying he believed Smith had violated police department policies the night he was killed, requested permission to enter as evidence the Beckley Police Department’s policy manual.

Should Kirkpatrick allow submission of the manual, Hobbs said Marvin Robinson, a former city detective, would be an expert witness for the defense.

Keller questioned the relevance of the manual and added not only was there no evidence Smith had done anything wrong on the night of his death, but that if he had been in the wrong it is “no defense saying he wasn’t following rules and procedures.”

Keller asked Kirkpatrick to not permit Smith’s character to be called into question during the trial.

Kirkpatrick said there would be no “attacking or trashing the reputation” or Smith’s character.

Although Hobbs told the judge Smith’s character was not generally an issue, he said some of the conduct from the night of his death was. He asked Kirkpatrick to give guidelines on “how far he could go” when talking about what Smith had done prior to the incident.

Kirkpatrick said he would put together a pre-trial order to discuss what matters are permissible and what are off-limits.

Another pre-trial hearing has been scheduled for 1:30 p.m. next Wednesday, at which time Kirkpatrick will rule on the request for a blood sample as well as on the admissibility of the department policy manual. The hearing will also determine if Robinson is qualified to testify as an expert witness on the manual.

Leftwich’s co-defendant, Michael Martin, who set up the alleged drug buy between Leftwich and Smith and was himself convicted of first-degree murder in December, will also appear at the hearing to determine if he is willing to testify at Leftwich’s trial or if he will exercise his Fifth Amendment rights.

Leftwich, barring a negative medical exam, will wear a shock belt mechanism during his trial.

Kirkpatrick explained the belt will allow the court to reduce the number of police officers needed in the courtroom. Should Leftwich not comply with orders or get out of hand, Kirkpatrick said, a trained officer would administer a shock that would temporarily disable him.

Leftwich agreed to wear the belt.

— E-mail: mjames@register-herald.com