Update on the Walker Case (Fourth Amendment Open Carry Lawsuit)

In case you’re following along with the Walker v. Donahoe, et al. Fourth Amendment open carry civil rights lawsuit, we have a jury trial scheduled for February 19, beginning at 8:30 a.m. at the federal courthouse in Huntington, West Virginia. As of right now it’s still on.  Both sides have asked the court for summary judgment, which basically means that both sides claim to have the law completely on their side.  The court has not ruled as of yet. Pretrial documents have been submitted, including motions in limine, which are trial issues anticipated by the parties, which are best argued prior to the start of the trial.  If you haven’t seen the video of the incident in dispute, here it is:

The defendants are seeking to exclude portions of this video showing the “investigatory detention” of Michael Walker by the Putnam County Sheriff’s Department.  Not surprisingly, they want the part of the video where the police officer calls Michael a “co*ksucker,” repeatedly, among other things to be kept away from the jury.  Here’s their argument:

Also not surprisingly, we strongly disagree.  Here’s our response.  The judge will decide at some point, and generally has the broad discretion to control the flow of what the jury gets to see, and what they don’t:

We also filed a few motions in limine of our own, including our attempt at stopping the defendants from bringing up the Parkland school shooting, which they have announced is their attention, and which has absolutely nothing to do with the case.  They are also seeking to make the case that because Michael had an AR-15 style rifle, that a reasonable officer could suspect him of being a potential school shooter, or something to that effect.  Which is of course highly offensive, and antithetical to both the Fourth Amendment and the Second Amendment to the U.S. Constitution:

In case you’re curious about the current status of laws pertaining to the open carrying of firearms in West Virginia, check out the last post I did on it.  It should still be the same. Of course, this case could change that if it doesn’t go our way…..

“High Profile” Criminal Case = Poison in the Pool

“Bath Salts Arrests”

This was the headline, and accompanying photograph, seen after our recent hearing in the Mineral County, WV felony prosecution of John and Tonya Cozatt.  They are being prosecuted for several felonies for selling potpourri in their nutrition stores which allegedly contained “synthetic marijuana”.  The newspaper just couldn’t resist labeling the products as “Bath Salts”, which of course have been all over the national news due to incidents such as the face-eating incident in Florida.

The actual article makes it clear that the case has nothing to do with “bath salts”.  But if you look at the link I provided above under the photograph, you can see how they mentioned “Bath Salts” or “Salts” in three different areas surrounding the article.  It’s like the media labeling every gun, regardless of what it actually is, an “AK-47” or an “assault rifle.”  In the end, it poisons the jury pool.  In all of these pre-trial articles, people are seeing “bath salts, bath salts, bath salts.”  And in the national media they are seeing endless stories on people on bath salts doing crazy things.  Is it really necessary to sensationalize something that is innocuous as a nutrition store selling potpourri?  As the article notes, law enforcement had no idea the potpourri may have contained illegal compounds prior to having it analyzed by a laboratory:

Attorney John H. Bryan, representing the Cozatts, questioned Paterline about the packaging of the substance, noting that none of the packages said it was synthetic marijuana or meant to be smoked.

Bryan also asked Paterline if he could tell when he purchased the substances if they were illegal or not, and he said he could not.

Interesting criminal cases dismissed before trial

I had a felony criminal case going to trial tomorrow.  But, an unusual thing happened.  The judge dismissed the cases on Friday by granting my motion to dismiss.  This is an interesting case, in a macabre way.

My client, who was an EMT, was alleged to have taken a photograph of a deceased body – a suicide victim.  That photograph was alleged to have been text messaged to his wife – another EMT.  Additionally, the photograph was alleged to have been shown to other individuals.  When authorities found out about these allegations, they wanted to prosecute.  But there was a problem: in West Virginia it is not against the law to take photographs of deceased bodies.  So here were the charges:

W. Va. Code § 61-8-14 provides:

If any person unlawfully disinter or displace a dead human body, or any part of a dead human body, which shall have been placed or deposited in any vault, mausoleum, or any temporary or permanent burial place . . .  he shall be guilty of a felony, and, upon conviction, shall be confined in a state correctional facility for a determinate sentence of not more than five years.

 Here were the state’s allegations as contained in the indictment:

The grand jurors of the State of West Virginia, in and for the body of the county of Greenbrier, upon their oaths present that, on or about April 20, 2012, in the said county of Greenbrier, CLIENT feloniously, unlawfully and intentionally disinterred or displaced a dead human body, or any part of a dead human body, placed or deposited in any vault, mausoleum or any temporary or permanent burial place.  More specifically, on or about April 20, 2012, in Greenbrier County, West Virginia, CLIENT, while working as a driver for the Funeral Home, transported the deceased body of VICTIM from Appalachian Regional Hospital in Summers County, West Virginia, to the Funeral Home in Monroe County, West Virginia.  Furthermore, on said date, CLIENT, while en route as indicated above, removed the Identification Tag.   Such act was against the peace and dignity of the State of West Virginia and is a violation of West Virginia Code § 61-8-14.

They also charged felony conspiracy to disinter, both against the client and his wife.

The obvious problem with the indictment was that, according to the statute, it did not allege a crime.  We all know that the act being prosecuted is the taking of the photograph.  However, in an act of legal acrobatics, they are technically prosecuting for the alleged removal of a body tag.  We filed several motions to dismiss, and the motions were set for an evidentiary hearing.  We subpoenaed the investigating officer, as well as the funeral home embalmer to testify.

The investigating officer testified that the embalmer told him that upon arrival at the funeral home, he observed the body still inside the client’s vehicle, and that the body tag was laying loosely on top of the body bag.  However, the embalmer was the next witness.  He testified that he never observed the body while it was still inside the vehicle, and that he had no recollection of the location of the body tag.  Furthermore, he said that it was in the client’s job description to assist him by transporting the body inside the embalming room, and to remove the body bag, clothing, and the body tag itself (the removal of which the state was arguing was a felony offense).  This is, of course, performed by first responders, as well as funeral home employees every day across the state, and it would be unfortunate to make them all felons.

The only West Virginia case law on the “disinterment” statute was State v. Duncan, and it involved a woman who dug up a murder victim from a shallow grave for the purpose of planting the body in a river so that it could be discovered by authorities.  Apparently she had dumped the victim’s vehicle in the river, and then realized that if the body was not discovered it would look suspicious.  So she was going to dump the body in the river so that it could be found.  She apparently gave no thought to whether or not the bullet hole in the victim’s head would be at odds with her drowning set-up.  Anyways, she was charged with “disinterment” since she was not the actual murderer.  The WV Supreme Court held that the removal of a body from a shallow grave did qualify as a temporary or permanent burial due tot he fact that the body is actually covered with dirt, etc.  The decision left no wiggle room for a prosecutor to argue that a body bag also qualifies as a temporary place of burial.

The Judge in our case discussed this case, and also discussed the fact that only next of kin have the right to “bury” somebody, and that transportation from the coroner’s office to the funeral home in a body bag, by non-family members cannot be considered “burial”.  And criminal statutes are to be strictly construed.  The word “burial”, at least in the dictionary, means “grave” or “tomb”.  Therefore, a body bag, just isn’t a temporary place of burial – even where there is an unpopular defendant and public outcry for punishment.  Even though I love to try jury trials, there is no better result than avoiding the possibility of conviction altogether with an outright dismissal of the case.

News coverage of high-profile criminal cases continues to disappoint

I have posted before about the danger that ignorant media coverage poses to criminal cases – especially TV news coverage.  The reporting is just awful.  One particular local channel brags that they are helping law enforcement clean up the criminals out of our community.  In reality, they are just posting mugshots and reading law enforcement press releases.

I was in court yesterday for a pretrial hearing in a high profile southern WV case.  Up to that point, the media had not appeared at the prior court hearings – most likely because they didn’t know about them.  Somebody had apparently tipped them off about the hearing taking place.  Some prosecutors, when they realize that their plea offer is not going to be accepted and that they are going to have to try the case, will get the media involved which effectively poisons the jury pool.

The TV news crew filmed the hearing, obviously taking careful notes about what was being said (I say that sarcastically).  Instead of broadcasting the audio from the hearing, they substituted their reporter’s voice, which was completely misstating the substance of the hearing.  Then, as my client and I were leaving the courtroom, they ambushed us putting cameras and microphones in our faces.  The reporter asked, “what do you want to tell the victim’s family?”

The funny thing about this is that 30 minutes earlier we were all quietly sitting in the courtroom, along with other attorneys and defendants, waiting for the judge to appear.  They had every opportunity to film my client at that time.  They had every opportunity to request an interview or a statement, or whatever.  They had every opportunity to ask questions about where the case was heading.  I’m not saying they would have gotten any information from us, but they made no attempt.  They are obviously not interested in the facts, just sensationalism.

Are you entitled to a dismissal in West Virginia if the cop doesn’t show up?

There is a common misconception out there that, in a misdemeanor case, or in a traffic case, that if the arresting officer or the citation issuing officer does not show up, that you are entitled to a dismissal of your case.  Sometimes that can be the case, but many times it is not.

This can differ between counties in West Virginia.  Usually, in a misdemeanor case, the first court date will be a “pretrial” hearing.  The purpose of this hearing is for the defense attorney and the prosecutor to attempt to resolve the matter through a plea or some other resolution, or else to set the case for trial.  Usually there is no need for witnesses at this hearing.  However, some counties will subpoena witnesses to this hearing date regardless – including law enforcement witnesses.  But the purpose is generally not to testify, but rather to be available for the prosecutor to speak to in an attempt to gain their consent, or other information, which would be helpful to resolving the case by plea agreement.  Some counties do not subpoena witnesses to this hearing and do not expect them to show up.  Other counties do not subpoena witnesses to this hearing, but send them a letter advising them of their right to show up – or of their preference that they show up.

Many counties used to always subpoena law enforcement officers to these hearings.  Many still do.  Many used to dismiss the charges if the officer who was subpoenaed failed to show up.  Some still do – and usually only if the prosecutor wants to teach the officer a lesson.  But in the majority of cases, a defendant will not be entitled to a dismissal on these grounds.  Now the actual trial date is a different story.  If you are set for trial and the officer doesn’t show up, you may get a dismissal from the magistrate, or the State may request a continuance, depending on the reason the officer did not show up.  Or, the State may attempt to proceed to trial without the officer’s testimony (if there is other admissible evidence).

In short, there are less ways than you would think, to get out of a misdemeanor criminal charge on a legal loophole or technicality.  Sometimes you can, but most often it is through the hard work and persuasiveness of a good West Virginia criminal defense lawyer.

– John H. Bryan, West Virginia Attorney.