Category Archives: Prosecutors

Update on Greenbrier County “Cattlegate” Cons

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The Register-Herald published a rather lengthy and informative article about Greenbrier County’s “Cattlegate” scandal this morning. I have posted on this matter several times thus far, here, here, here, here and here, and I have noticed a lot of interest in this case from the sheer amount of search engine traffic directed to my site from searches about these individuals. I suppose that some people were relying on me to post an update to this matter since the sentencing was supposed to already have happened. But I really didn’t have any idea what was going on. But, I knew that Register-Herald reporter Christain Giggenbach was on top of it, so I need only wait until he published an article, which I knew he surely would – and this morning he did.

Apparently the sentencing was supposed to have taken place this morning, but it was continued, though there were no motions filed by either the prosecution or the defense. Well why was it continued? Apparently these angelic creatures have turned stool pigeons and are collaborating with authorities in investigating other individuals. But since all these canaries are proven liars, I’m not sure what their help is worth, and investigators better not give their words more than a micro-ounce of a grain of salt. The history books are full of tragedies which have occurred through the utilization of this type of snake-in-the-grass testimony. For example, see this post from Glen Graham at the Oklahoma Criminal Defense Blog.

The sentencings were continued to October 17 at 10:30 a.m. before U.S. District Court Judge Thomas E. Johnston in Beckley’s Federal Courthouse.

So what kind of sentences are they looking at? A lot of people have commented to me that this bunch is going to get away with probation, but that will not happen. They may however, get some type of home confinement, or mixed sentence. With respect to O’Brien, a presentencing memorandum filed by Assistant U.S. Attorney L. Anna Forbes recommended a prison sentence up to 10 years, but “indicated the defendant has provided more information about possible criminal conduct of others who may have filed claims in his multi-million dollar bankruptcy case.” Lastly, she writes to the Court that “a sentence within the advisory guildine range of 97 to 121 months of imprisonment is appropriate.” So fear not, even with his sleazy finger-pointing, he will be doing time.

With respect to Henthorn and *****, the AUSA recommended 6 to 12 months, while their lawyers are arguing for home confinement or a mixed-type of sentence – and they are apparently strenuously snitching as much as the feds will allow, in order to get what they want. Mind you, that all of these defendants already snitched on each other – one even reportedly wearing a wire in a conversation with the others.

I know that there are a lot of people out there, in Greenbrier County, Monroe County – and across the fruited plain – who want the Judge to stick it to them. The AUSA noted in her memorandum that:

“One of the victims is a single-mom with a couple children in college, another is a Virginia cattle farmer with a small farm who lost so much money and was so ashamed by his financial predicament that he could not, for a long time, bring himself to tell his wife about what the defendant had done,” Forbes wrote. “Many of the victims attempted to pursue claims in bankruptcy, a process that left some with unsatisfactory settlements, large legal fees and a sense, because of the perceived misconduct by other creditors, that they had not been treated fairly by the bankruptcy system.”

So this is a great group of guys. Real quality people, and I wish them luck on the 17th.

– John H. Bryan, West Virginia Attorney.

Breaking News: candidates for Kanawha County Prosecuting Attorney Want to Reduce Dismissals

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This breaking news was reported in the Charleston Daily Mail today. Reportedly, both candidates for Kanawha County Prosecuting Attorney want to reduce the number of dismissals in their county due to West Virginia’s one-year-out-from-indictment-and-the-case-is-dismissed rule. As they say, shoot for the stars….

Geez, I’ve got to start taking more cases in Kanawha County.

There are lots of excuses for this, such as too many cases and too little funding. However, as Rudyard Kipling said, “there are forty million reasons for failure, but not a single excuse.” Having worked as a prosecutor in an office that had a caseload that was many times larger than Kanawha County’s, I can’t remember one case ever getting dismissed based solely on neglect. Heck, we sometimes went through a thousand cases a day. I guess that if you wanted to set up a system that couldn’t manage the caseload, you could do it. And apparently Kanawha County has done it. The tough part is making it work. But that should be the status quo, not some great achievement.

– John H. Bryan, West Virginia Attorney

Officer Fired for Stealing Breakfast

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WNBC New York reported yesterday that a Morristown, New Jersey, police officer lost his badge for shoplifting eight breakfast sandwiches from a convenience store. The prosecutor was reported as saying that the plea he entered “represents the fact that no one is above the law.”

So police officers are human… They are sinners like the rest of us. Does this mean that all police officers shoplift? No. But it does mean that they have the same problems, faults, regrets, and wrongdoings as the rest of the general public. And when they are caught in something like this, generally they are prosecuted like the rest of us.

However, where the big difference lies is when laws are broken related to their work as a law enforcement officer. What about the situation where a police officer tells a little white lie on the witness stand in order to validate the search or seizure of some guy who possessed drugs? That is a crime. In fact it is a serious crime – perjury. What about the situation where a person runs their mouth to a police officer and the officer arrests that person just out of spite – but for the charges off “obstruction” of the duties of a police officer? Did that officer not commit a kidnapping? A false imprisonment? An illegal arrest? The fact is, that these crimes are committed by law enforcement officers everyday around the country, and nothing is done about it because the persons charged with enforcing the laws – the cops and the prosecutors – are one in the same, and are not going to investigate or prosecute themselves or their buddies unless they have no choice. And as they see it, what is the harm when you know the person is guilty in the first place? And they are serving the public, right? Why punish some poor cop who is just trying to serve and protect? What motive would they have to ever lie or commit any crime?

The fact is, that society – and the judicial system – likes to pretend that cops are perfect, that they are perfect beings, formed in the likeness of Jesus Christ. That they would never, ever, lie under oath, that they would never, ever, use their badge and gun for their own personal gain or to hurt another who has gotten under their skin. But we, as people with common sense, and as people who observe things with our own eyes know better. We know they make mistakes and commit crimes, and do things they are later ashamed of – just like every other human on the planet.

So who are they kidding? Jurors – if they can get away with it.

– John H. Bryan, West Virginia Attorney

Debate Continues About Searching Lawyer’s Offices

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A few days ago, I posted about an extremely troubling trend emerging whereby lawyer’s offices are being searched as part of a criminal investigation of their clients. Since then, Scott Greenfield at Simple Justice picked up the conversation with this post. He first noted mine and Bobby Frederick’s concerns, stating that:

My ilk will go on auto-pilot and pound the keyboard exclaiming how these searches, where the government comes in, seizes everything in sight and sorts it all out later when they can examine every file at its leisure. This blunderbuss approach has been condemned by South Caccalacca criminal defense lawyer Bobby Frederick and West Virginia criminal defense lawyer John Bryan, and their concerns are well-founded.

But he also argued that “when a lawyer gets too close to his clients, such that he becomes a party to their enterprise,” there is a legitimate reason to search for evidence. And in these situations, Greenfield argues that a mutually agreed upon “Special Master” should be appointed to conduct the first level of scrutiny. It seems to me that this is not a bad idea.

But it will never happen – not as long as you have prosecutors who are willing to go between judges to get their warrant, and not as long as you have gullible or malicious judges who grant the warrant without conferring with the first judge. And let’s not forget this is only legitimate in the scenarios Greenfield points out: where the lawyer has helped the client engage in wrongdoing. This absolutely should not apply in a Texas murder case where the prosecutor is merely fishing for evidence with no evidence of wrongdoing by the attorney.

Bobby Frederick, of the South Carolina Criminal Defense Blog, also noted that now “a federal judge in New Jersey is allowing prosecutors to review computer records seized from a criminal defense lawyer’s office, including the files of clients who were not targets of the search.”

Frederick also cited my game-leveling dream scenario where defense attorneys could do the same thing, and concluded that:

This practice, in any situation other than where there is probable cause that a defense attorney is himself engaging in criminal activity and the search is specific and focused so as not to violate attorney-client privilege, is an abuse of process.

And I think that is something we all agree on.

– John H. Bryan, West Virginia Attorney

Search Warrants for Attorneys’ Offices is Troubling Trend

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Recently there have been a number of cases of search warrants being executed on Attorneys’ offices for the purpose of gathering evidence against a client/target of investigation. One such case was detailed by Bobby Frederick at the SC Criminal Law Blog here on August 23, where attorney George Argie’s office was raided by the feds seeking information/evidence on one of his clients. Frederick correctly notes that the appropriate method of obtaining information from an attorney’s files is through subpoena, in which case the attorney gets a chance to raise the attorney-client privilege before a judge.

On July 31, Frederick posted about the search warrant that was issued in Frisco Texas on attorney Keith Gore’s office, where State officials were seeking items and letters written from his client to his client’s wife. Thankfully, criminal defense lawyers in Texas came out in numbers in opposition to this Gestapo-like tactic.

Frederick recently added an update to that case, citing Grits and Tex Parte Blog, noting that the judge who signed that search warrant has now been recused from hearing the capitol murder case.

It is sickening to see that there are prosecutors out there who would go between different judges to get an illegal search warrant of an attorney’s office. If that is legal, then I would like to see a mechanism put in place whereby the lawyers of criminal defendants can obtain their own search warrants to be executed on prosecutor’s office. Say, for instance, that you know a certain prosecutor has a video tape that would exculpate your client. He refuses to hand it over, or to even acknowledge it. You could get a search warrant and have your private investigator execute the warrant and look for the tape. Yeah right. That’ll be the day. The sad fact is, that prosecutors are perfectly willing and able to abuse their power and not only will many judges not stop them, some of them apparently will help. I’m just glad I don’t practice in Collin County Texas.

– John H. Bryan, West Virginia Attorney.

“Testilying” an everyday occurrence

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Mark Bennett posted a few days ago about the “everyday incident” of cops committing perjury – or as they call it, “testilying.” He stated that:

Not all cops who lie are willing to perjure themselves. Many times cops on the witness stand tell different stories (the truth) than what they had put in their offense reports (lies). Unfortunately, though, most cases never make it to trial (often the lies are too small to be relied upon to affect the outcome), so prosecutors — despite having seen this happen more than I have — rely on offense reports as the literal truth in deciding how to resolve cases. (The lesson to defense lawyers is, of course, not to make that mistake, to listen to your client, and to remember that good things happen when you try cases. Nobody ever got acquitted by pleading guilty.)

I can’t tell you how many times I have cross-examined a cop in a suppression hearing or preliminary hearing, where something completely different comes out of his mouth than what he wrote in his police report. I think that what obviously happens is that the cops do whatever they want initially. They pull the person over on a “hunch,” or search the person or their premises illegally, without regards to mere rules or laws, then they put in their “report” a little white lie – that they received a tip from an undercover informant, or that the person drove erratically, or that the person consented to being searched. This, in their mind, validates the search, stop, or seizure if they found anything incriminating. Then, several months later, they get called to the witness stand, and they fail to review the report, but their memory is not totally in sync with their report.

Cops don’t fear prosecution for perjury because there is almost a 0% chance they will be prosecuted. The cops – or judges for that matter – could care less. The only, only, only situation in which there could be criminal liability imposed on a cop for perjury is if they are caught on tape or under oath, and if it is blatantly intentional. Only if the situation is such that a prosecutor of judge would fear for his or her own job if they fail to act. Otherwise, they will always be given the benefit of the doubt, if not just a shrug of the shoulders.

As a defense attorney, you know they are lying, but there is not much you can do about it other than to contest it and to create a record for your trial or your appeal. As Mark Bennett, said, “nobody ever got acquitted by pleading guilty.”

– John H. Bryan, West Virginia Attorney.

Is it a crime for a child to take a photo of a cop handcuffing her father?

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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.

– John H. Bryan, West Virginia Attorney

This Blog Makes Front-Page News…

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Note: this post was initially much more extensive.  Pursuant to the advice of my beautiful wife, against whom I have never won an argument (and suspect I never will), and who’s advice has the usual effect of making my hot-heated initial reactions seem childish and ineffective, I have revised this post.

It seems that my humble commentary regarding the Register-Herald op-ed piece detailed in my last post touched quite a few nerves at the Monroe Watchman newspaper. For those of you who may not know, the Monroe Watchman is the main newspaper for Monroe County, West Virginia, and it has been continually published since 1872. It’s a great paper. I read it every week, and I am also a paying advertiser. They are also located right across the street from my office building.

Why should they care about my commentary in this post? Because the Watchman is owned by the family of the former prosecutor who I allegedly criticized, and understandably, they are protective of their family members. And also understandably, the former prosecutor is deeply hurt as a result of the lost election.  And I completely understand the hurt, as I suffered through my father’s election defeat as a college student.  It’s not easy to see negative television commercials about your father running during prime-time every couple of minutes for a month straight.  Your natural reaction is to lash-out at your perceived threat, and I guess that that is what I was doing as well in my initial response in this post.  And so I also understand why the former prosecutor feels the need to protect himself and his family.

This situation is not about me, it’s not about the former prosecutor, nor the current prosecutor, nor the magistrate – nor the Watchman.  This is about Mr. Watson, who made the intentional choice to consume alcohol and drive a dozen children off of a 120 foot cliff in a Monroe County school bus.  This is about Mr. Watson, who tried to save his own skin by lying and claiming that he consumed Nyquil the night before.  This is about Mr. Watson, who misled much of the community into believing that he was innocent, only to let them down with the sad truth – that he had an alcohol problem.  But, he still didn’t want to lose his job, and he didn’t want to lose his retirement.  That was what Mr. Watson was worried about.  Was he worried about the children on board his reckless DUI school bus?  No, he was worried about himself.  This is about the fact that Mr. Watson received a plea deal where only two days was recommended, and where he only received twelve (to serve on the weekends at his leisure).  

When I was working as a young prosecutor in Raleigh North Carolina, I tried a man for 2nd offense DUI.  He was convicted and sent to jail for one year.  There was no accident, no children in the car, no adults in the car – nobody injured whatsoever.  He was just some guy who got pulled over and failed some field sobriety tests.  That was a serious charge.  He was the first person I sent to jail as a prosecutor.  I’ll never forget the image of a deputy walking up behind the man and putting him into handcuffs.  Imagine if this man, when he was pulled over, had a child in the car?  Imagine if he had a dozen children in the car.  Imagine if he had a dozen children in the car and drove off a 120 foot cliff.  Imagine that he did this with your child in the car, entrusted to his care, and that afterwards he lied and told you that it must have been the Nyquil he took the night before?  My point is, this is about protecting the children.  We should have made an example of this man.  He was a school bus driver for heavens sake!  The citizens of Monroe County trusted him to drive their children to school and back every day!

I have been on the other side of the coin as well.  As a defense attorney in Greenbrier County several years ago, I had a client who was convicted of 2nd offense DUI.  We begged and pleaded to the judge for a light sentence, since he wanted to join the military.  The guy was sentenced to one year in jail – and he actually went to jail for about 8 months before he got out of jail.  He wore the orange jumpsuit and ate the awful food for breakfast, lunch and dinner – everyday.  He did his time.  He didn’t whine or complain.  He served his debt to society. 

My argument is simply this: did this man not deserve a real punishment?  Would it really have been a great miscarriage of justice if this man had really been forced to serve a real sentence in jail?  I don’t think so.  It happens all the time in 2nd or 3rd offense DUI cases.  Is it not more egregious for a man to get drunk and then drive a school bus loaded with children?  And then to actually crash off a cliff?

Since the Editor criticized me for making “no effort to discuss the issue with Mohler before writing [my] scathing assessment…” then I will reiterate the same offer that always exists on this blog – both to subjects of my posts and to casual observers: if you disagree with something I have said, then please, by all means, leave a comment on the blog. As always, anonymity will be maintained where requested.

– John H. Bryan, West Virginia Attorney

Opinion Piece in Register-Herald Regarding Monroe County School Bus DUI

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As some of my readers will remember, I was given some flack in the community for speaking out early against this bus driver – Clyde Watson. And as it turns out, Mr. Watson proved himself to be a disgrace after all. The really mind-numbing part of this is, that people in Monroe County love this guy for some reason. It seems he is the “everybody’s favorite uncle” type. The editorial slams Monroe County for the way in which this case was handled.

The editorial places some blame on the prosecutor, and I must now stick up for him with respect to the most-generous plea deal. The previous prosecutor made the plea agreement. No matter how ludicrous the agreement was, it was the current prosecutor’s duty to follow-through with that agreement. It is no different than if he made the agreement himself. So, it was not his fault that the plea agreement was executed.

The paper gave a lot of flack to the magistrate, who gave the guy a 12 day sentence, to be served on the weekends at his leisure. To her credit, she actually increased the sentence from what the previous prosecutor had agreed to recommend – which was 2 days. However, it seems that the guy just walked in and asked to be sentenced quietly – without a lawyer, and without the prosecutor (or any victims) present. The paper did note that the magistrate made a phone call to the prosecutor to make sure that the sentence was okay with him.  Actually, this is pretty much what always happens in misdemeanor cases in magistrate court.

Welcome to the world of magistrate court. The prosecutor is king. The prosecutor wants X, he gets it. The prosecutor wants Y, he gets it. Trust me, I am still waiting on a phone call from a magistrate requesting my blessing for someone’s sentencing. And this is the way things happen. If you are charged with a felony, there is a boatload of paperwork and formal procedure (and legal mumbo-jumbo). But, if you are charged with a misdemeanor, then you are in magistrate court, and things appear, disappear, reappear, and are modified, with not much more than the stroke of a pen or a phone call.  That’s just the way it works.

Observing from the ivory tower is one thing, but in reality, what could have been done differenlty by this prosecutor and this magistrate? About the only thing the prosecutor could have done differently is make sure that the victims were given the opportunity to speak at the sentencing. But then again, that is almost never done in misdemeanor cases.  He could not have recommended or argued for anything more than 2 days.

The magistrate could have reviewed the presentence investigation report (“psir”) prior to the sentencing, and could have scheduled the hearing for a date when the victims and their families could have been there to speak. But in reality, if a psir was prepared, the guy was most likely petitioning for probation, in which case the sentencing should have been in circuit court, where psir’s are regularly prepared and reviewed. Furthermore, this also almost never actually happens in these misdemeanor cases.  Even with felonies in circuit court, this is mostly a formality. The biggest thing of substance that she could have done is to give the guy a larger sentence. How about some real jail time? How about a year in jail? 6 months? How about 30 days of real, actual, jail time? He would have deserved it. But it would have been extremely unusual for a magistrate to stray that far from the recommendations of the prosecutor.  In fact, she already exceeded the prosecutor’s recommendation fourfold….

So if justice was not served in this situation, the Register-Herald can point their finger at the former prosecutor.  But there is no sense in doing that, because he already lost his job, and that probably was partially due to this case.  And nothing positive is served by rubbing salt in his wounds.

Despite the “slap on the wrist,”  Mr. Watson suffered a punishment that is rarely given in misdemeanor offenses: major coverage and castigation in a prominent regional newspaper.  Henceforth, any time someone googles his name, these articles will come up.  It will be difficult for him to ever get past this time in his life…  I don’t know about you, but I would rather do a stint in jail than have your darkest hours broadcasted to the surrounding 5 counties, to live in perpetual existence on the internet.

You can read the full editorial here.

– John H. Bryan, West Virginia Attorney.

Client Decisions, Prosecutors and Secrets

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Mark Bennett has a great post from yesterday regarding the quick decision-making that takes place between a criminal defendant and his or her lawyer.

Much of the decision-making is centered around whether and when to reveal NLS’s – “nasty little suprises” – to the prosecutor. Bennett characterizes NLS’s as “a piece of evidence that I have that the State doesn’t have; it can be a fact that I know that the State doesn’t know; it can be something that the State doesn’t realize it should have done, but hasn’t; or it can even be a bit of law that the State isn’t aware of.”

A lawyer I used to work with was on his way to a felony jury trial, and was listening to a tape of an undercover drug buy that had been provided by the prosecution as a part of discovery. The day prior, the investigating officer had testified that he absolutely did not do something illegal (which the defendant had alleged he had done). This lawyer just happened to turn the tape over to side B while on his way to the courthouse, which was supposed to be blank. In the middle of side B, there was some audio. As he listened, he realized that the officer had committed the illegal act, and that unbeknownst to him, the microphone was on and recording. It seemed that likely the prosecutor and the officer were unaware that this was captured on the tape.

So upon arriving at the courthouse, he went to the prosecutor and said, if you want to continue with this trial, I have something that will end the career of this officer. He said, you only other choice is to immediately dismiss the case with prejudice. The prosecutor dismissed the case with prejudice. Did the prosecutor know about the missing audio on side B? Did he technically provide the exculpatory evidence all -the-while hoping it would not be discovered in the middle of side B? I don’t think so. If he or the officer knew about it and wanted it to remain unfound, they probably would just have erased it.

Anyways, it is interesting to see Bennett describe his mental process with regards to dealing with prosecutors – the good, the bad and the young. Much of what he describes I have observed in my own experience.

– John H. Bryan, West Virginia Attorney.