Category Archives: Sentencing

Former Logan PD Officer Sentenced to 9 Years for Civil Rights Violations

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About 7 months ago, I posted a video about a West Virginia police officer, Everette Maynard, formerly of the Logan, WV Police Department who was found guilty by a federal jury of violating an arrestee’s civil rights by using excessive force. This was caught on video. This is the one where the officer was caught by a surveillance camera flipping the bird to the camera. 

Today I talked to one of the investigators involved with that prosecution and thought I would give you an update video about what ended up happening to Officer Maynard. The DOJ recently issued another press release on the case, announcing that former-Officer Everette Maynard has been sentenced to 9 years of prison to be followed by 3 years of supervised release due to his conviction of violating an arrestee’s civil rights by using excessive force against him.

In the video I posted late last year, I showed you the actual photos presented to the jury during the trial, and I went over the actual jury instructions used in that case. Here’s the video:

This is a rare case of a police officer being held accountable in the most important way. He received almost a decade in prison for his actions. The U.S. Department of Justice had this to say about the sentencing of Maynard: 

“This defendant’s abuse of law enforcement authority inside a police station was egregious and caused serious injuries,” said Assistant Attorney General Kristen Clarke for the Justice Department’s Civil Rights Division. “Police misconduct undermines community trust in law enforcement, and impedes effective policing. This sentence confirms that law enforcement officers who use excessive force against arrestees will be held accountable.”

Title 18, United States Code, Section 242 makes it a crime to deprive any person of his civil rights under color of law.  For a jury to find the defendant guilty, the federal prosecutors must prove each of the following elements beyond a reasonable doubt at trial:

1. The defendant acted under color of law;

2. The defendant deprived the victim of a right secured or protected by the Constitution or laws of the United States – here, the right of an arrestee to be free from unreasonable seizures, which includes the right to be free from the use of unreasonable force by a law enforcement officer; 

3. The defendant acted willfully; and

4. The defendant’s acts resulted in bodily injury to the arrestee. 

(NOTE: elements 1 and 2 are by themselves a misdemeanor; when elements 3 and 4 are present, it rises to the level of a felony.)

On Nov. 17, 2021, a federal jury convicted Maynard of using excessive force against an arrestee while Maynard was a police officer with the Logan Police Department in West Virginia. At trial, the jury heard evidence that Maynard assaulted the victim in the bathroom of the Logan Police Department before dragging him into an adjoining room, hauling him across the room, and ramming his head against a doorframe.

The assault initially rendered the victim unconscious and left him with a broken shoulder, a broken nose, and a cut to his head that required staples to close. While the defendant assaulted the victim, the defendant berated the victim for “making demands” of him by, among other things, asking to go to the bathroom. After the assault left the victim unconscious in a pool of his own blood, the defendant bragged about his use of force.

It’s important to note that, in this actual case, the jury was instructed that a police officer “may not use force merely because an arrestee questions an officer’s authority, insults the officer, uses profanity, or otherwise engages in verbal provocation – unless the force was otherwise objectively reasonable at the time it was used. Additionally, the jurors were instructed that an officer may not use force solely to punish, retaliate against, or seek retribution against another person. 

These sorts of unnecessary uses of violent force against arrestees, if true, can never be reasonable. 

How did the jurors know that it happened this way? Because it was captured on video, which is by-far the most important tool available to us for constitutional accountability. The police certainly like to use video evidence against the public in their prosecutions. But they don’t like it when it happens to them. In this case however, I’m told that it was actually a law enforcement officer who originally blew the whistle on this guy to federal investigators. Good for that individual. There needs to be more of this. And I have reason to believe that there will be more of this in West Virginia. 

New issues are presented on whether jail and prison inmates in (or from) West Virginia can/should be released due to COVID-19

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We’ve been working hard in multiple cases to try to obtain the release of some non-violent jail and prison inmates who are currently stuck in their cells, having completed the bulk of their sentences for nonviolent offenses. Many of the facilities have stopped all academics and facility programming and just leaving people quarantined in their cells. (Update 4/30/20: Success! First one is out!)

Many of these same individuals have the ability to be self-sufficient in the outside world – even during this crises – rather than requiring prison staff to interact with them, feed them, and so on. Not to mention the requirement of we the taxpayers to fund the whole thing. Yet even with this global pandemic, West Virginia’s correctional facilities are still overcrowded, with more inmates incarcerated than there are “beds available.”

As of April 1, 2020, there were still 270 more prisoners incarcerated than available beds. Many of these prisoners, such as the ones we’ve been trying to help, are nonviolent offenders who’ve already served most of their sentence, who pose no real risk to public safety, and who could be assisting their own families at this time. Some of these individuals have underlying health issues which makes them especially vulnerable.

The West Virginia Division of Corrections has come up with a comprehensive plan to mitigate the likelihood of an outbreak in these facilities, but we’ve all heard about the issues at nursing homes in West Virginia, where our outbreak first started. Vulnerable individuals in institutions such as these are at “grave risk of severe illness or death from COVID-19,” and this includes vulnerable prisoners. See Joe Severino, Charleston Gazette-Mail, A WV Nursing Home Had 29 COVID-19 Cases. Here’s How they Contained the Spread (Mar. 31, 2020).

West Virginia recently passed legislation which was intended to address overcrowding, but which also would be perfectly suited to the COVID-19 threat. However, it doesn’t go in effect until June 5, 2020. In that legislation, the DOC is authorized to develop and approve home plans for certain qualifying inmates. This would help, but June is still some time away. In the meantime, inmates are most likely required to go back to their sentencing judge in the court/county in which they were sentenced. That’s what we’ve been doing.

In federal court, there’s a provision for an inmate to petition for what’s called a “compassionate release,” which would apply well to prisoners with an underlying health vulnerability. However, there’s a problem there as well. By law, they’re required to make an administrative request to the federal Bureau of Prisons first, prior to going to the sentencing judge.

Unfortunately, West Virginia doesn’t have an option for “compassionate release” just yet. But something needs to be done. So far, we’ve filed motions for reconsideration of a sentence under Rule 35(b) of the West Virginia Rules of Criminal Procedure. There’s a time limit of 120 days generally to file this, so most inmates are going to be beyond this number. However, there is an exception which allows a sentencing judge to waive the time limitation so long as it doesn’t “usurp the role of the parole board,” whatever that means. See, e.g., State v. Head, 198 W. Va. 298, 480 S.E.2d 507 (1996). 

We finally have our first hearing coming up this week on a Rule 35 COVID motion. We do know that certain sentencing judges around the state have allowed some of their inmates an early release on bond or home confinement due to COVID-19, but at this point it’s entirely up to the discretion of the court, which means that everything is on a case-by-case basis.

In the federal system, there is a mechanism for release, and there’s a number of set factors for the court to address – also a case by case analysis. But again, there’s that requirement to exhaust administrative remedies from within the BOP first before filing.

So far the ACLU and Mountain State Justice have tried to take action on a multi-client basis and have been denied. Again, these are case-by-case fact-heavy situations which require going to the sentencing judge. In New Jersey, there’s already been a case up to the U.S. Court of Appeals for the Third Circuit on a “compassionate release” petition. (USA v. Raia) However, because they didn’t make the petition to the sentencing judge, and also because the inmate didn’t ask the BOP administratively first, it got sent back with no real decision.

On its own, the West Virginia DOC has already released about 70 parolees who were serving short terms for parole-related violations, and about 70 other work-release inmates on “extended furlough.” Who knows where we go from here, but as they say, “no asky, no gety….”

If you need help with an inmate who you believe is vulnerable medically, or who is a nonviolent offender who has served a substantial portion of their sentence, we would be happy to help. Give us a call. (304) 772-4999. We’re still working, though we’re having all consults via telephone or teleconference.

Out of control incarceration

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In the old days, when someone killed someone else, they were either hanged, shot, or acquitted.  There was none of this business of keeping people in jail for years and years on end, or for the rest of their lives.  We have gotten to a point, where we incarcerate millions and millions of people perpetually.  I’m not against the death penalty.  I believe it would be more humane to execute someone by firing squad than to keep them in a cage like an animal for years on end.  This is torture, I believe.  And it’s a huge burden on the taxpayers.

At some point we need to radically alter our criminal justice system.  Maybe when we reach the point that more people are in prison than who are paying the taxes and footing the jail bill we will come to our senses.  We are to the point now where just about every thing you can think of is illegal.  Then, once we brand someone a felon, they no longer can get a job, they no longer have the right to defend themselves with firearms, and so on and so forth.  So even after people do their time and serve their debt to society, we keep kicking them in the rear, insulting them, allowing society to disrespect them, and we prevent them from earning their own way through the rest of their lives.

There is a saying in criminal defense: we are protecting those who have fallen short of perfection from the wrath of those who believe they have attained it.  If Jesus were alive now, who would need his help?  I think he would be helping those who are persecuted.  Who is more persecuted – at least in the U.S. – more than those who are incarcerated or awaiting trial on criminal charges?  Jesus would surely defend those being persecuted – i.e., “charged” – by others; those who have their integrity, their liberty, and their humanity stripped from them.

– John H. Bryan, West Virginia Attorney.

But what about the felony sentencing in WV?

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As I was writing the post yesterday about the downward trend in West Virginia misdemeanor sentencing, I was thinking, well what about felony sentencing?  The same principles apply.  Why fill up our prisons – at our cost – for property crimes and other non-violent offenders.  What’s the point?  With all the federal civil rights requirements, we have to provide inmates with medical care, etc.  With the perpetrators in prison, the victims aren’t getting any restitution anyways.  It’s a lose-lose-lose situation.

Today the Register-Herald had just such an article on this topic, titled “WVU examining prison sentencing: Researchers looking at ways to ease overcrowding in jails.”  It quoted senators Kessler and Chafin, both of whom are lawyers:

Back when he was handling criminal law, Chafin recalled how a defendant in court for a property crime likely could have avoided a prison stretch.

But when the victim and his family appeared in court, the sitting judge clearly was moved and came down hard on the defendant, the senator said.

“First thing you know, the guy’s locked up one to 10 and really didn’t need to go,” Chafin said.

Kessler discussed the increase of punishments for many of West Virginia’s criminal statutes:

Within the past decade, Kessler pointed out afterward, the Legislature has raised penalties on two to three dozen statutes, often in response to a sensational crime given voluminous media attention.

“It seems that we do it piecemeal often times in knee-jerk reaction to some type of crime that happens in our communities that gets a lot of headlines,” he said.

“So we go out and double the penalties on those.”

Basically, WVU will be conducting research, and in the end, hopefully someone in the state legislature will be promoting reform with the goal of reducing the state prison population.  Mainly this can be done through the decrease of penalty ranges for common property-type crimes, and the promotion and creation of other forms of alternative sentencing.  But in the end, we will always have the problem of circuit judges facing reelection, and the goal of reducing prison population will never be an election-winner.  Maybe we should also reform the selection procedures for circuit judges, and take politics out of the equation.

– John H. Bryan, West Virginia Attorney

Downward trend in WV misdemeanor sentences [well, mostly]

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There was an interesting article in the Beckley Register-Herald this morning, about the downward trend that we are seeing in West Virginia with misdemeanor sentences involving jail time.  However, there were two exceptions – one of which was Monroe County, which went from 20 misdemeanor jail sentences in 2008, and only 5 the year before, to 34 this year.

Every county could spend every dime they own to incarcerate all of those who deserve to be incarcerated, but its just not worth it.  Especially now, West Virginia counties (and the State) need to learn to live within their means.  As property values are decreasing, West Virginia counties are raising their property taxes, as if properties values have been skyrocketing.  But they haven’t.  County spending has been the only thing skyrocketing, and they have to pay for it somehow.  This is not the fault of the criminal justice system, its mostly the fault of the school systems (who get about 80% of the county budget).  Just take a look a line-itemed explanation of how much money they spend and what they spend it on.  In contrast, the local budgets dealing with law enforcement and criminal justice, are minute.  Still though, the same citizens who are complaining that the prosecutors and judges are not tough enough on crime, will be the first to complain when they get taxed to death by the county.  These people will never be able to be pleased.

We should limit those we incarcerate to dangerous persons – persons who need to be behind bars.  Why spend our money using incarceration as a punishment when there are other forms of punishment that cost less, or are free?  Whatever happened to community service?

Part of the problem here is that we have turned the criminal justice system into a debt collection service.  Defendants agree to pay restitution, or they are ordered to pay restitution.  And the threat of incarceration, in the form of a suspended sentence or contingency, is held over their head.  When they don’t pay, they get sent to jail.  And they usually don’t pay.  The overwhelming number of criminal defendants have no source of income.  They don’t really need an income in West Virginia.  They know that the taxpayers will take care of them one way or the other.

Then you have these alleged victims, who instead of filing a civil suit in magistrate court, camp out on the prosecutor or magistrate’s door step, demanding that, as a voter, they have these individuals arrested and jailed until they are paid.  In the end, the county, and hence the taxpayers, end up footing the bill for these people to be incarcerated.  In a sense, we have gone back to the old system of debtor jails.  I would guess that there are more regional jail inmates who are there for property crimes or financial crimes rather than for violent crime – which actually is pretty rare in most of rural southern West Virginia.  And most of those would not be in there if they could come up with the money to pay “restitution.”

Well I say let the alleged victims sue them and obtain a civil judgment for the money.  Why should we all have to pay for it?  Or, in those cases that are clearly very “criminal,” the sentencing magistrate can always, and almost does always, award a judgement against the defendant.  But payment of those amounts does not have to always exist under the threat of incarceration.  The fact is that you are always going to have these types of poor-excuses for citizens causing problems and cheating people out of money.  Every community has them.  There’s really nothing we can do about it that is worth the price.

– John H. Bryan, West Virginia Attorney

BREAKING NEWS: “Cattlegate Cons” Sentenced

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[Note: at the polite request of innocent family members, I replaced the name of the least culpable defendant with ****.]

Surprisingly, it appears that I am the first to break this story – that the “Cattlegate Cons” were sentenced this morning by U.S. District Court Judge Thomas E. Johnston as follows:

O’Brien was sentenced to 97 months of active incarceration and 3.4 million dollars in restitution.

Henthorn was sentenced to 9 months of incarceration and a $75,000 fine.

***** was sentence to 5 months of incarceration and a $50,000 fine.

UPDATE: Apparently now there is a Charleston Gazette article confirming this now online.

ANOTHER UPDATE: The Register-Herald has now published a lengthy article on the sentencing yesterday.  Reporter Christian Giggenbach noted in the article that Judge Johnston made some interesting observations about the case during the sentencing hearing.

Johnston also railed on Henthorn, 46, of Lewisburg, for abusing his position of trust in the banking community. He also insinuated this was probably not the only illegal act Henthorn had committed.

“You were living a privileged life and you threw that away,” Johnston said. “This is an example of what can happen when you allow greed to overcome you.”

Henthorn also apparently attempted to get his probation officer to remove negative letters that were going to the judge.

Former FNB board member James C. Justice II of Beckley was among family and church members who wrote letters in support of Henthorn. One document filed by a court official indicated the defendant called his probation officer on June 4 and asked her if “she would remove the negative” letters from his support file.

“The probation officer responded she would not do so … Mr. Henthorn was obviously upset by this answer and ended the conversation soon thereafter,” wrote U.S probation officer Peggy Adams.

Can you believe the arrogance of this guy?  Judge Johnston also questioned why First National Bank of Ronceverte was suspiciously absent from this entire ordeal – despite the fact that their President and Board members caused this whole mess.  According to the article:

Johnston also asked a rhetorical question about Henthorn’s former employers.

“I’m puzzled by the fact that First National Bank has not participated at all in this hearing,” the judge said. “I expect the whole story has yet to be told.”

However, there was a former board member and one former president of First National Bank there supporting Henthorn and *****, respectively (see Justice above).  According to the article:

****** had about 15 friends and family members present for the hearing, including former state Commerce Secretary and ex-FNB president Tom Bulla, who Johnston vocally noted had come to support ******. Johnston said individuals filed more than 100 letters of support for ******, “the most I’ve ever seen in a case.”

So, “FNB” was not completely absent, they were represented by former officials – who were there to ask the judge to be lenient.  I would note that one of those former officials himself resigned from the board only shortly before ***** and Henthorn themselves resigned from “FNB,” which was reported publicly, but not explained.  Don’t you just love banks?  Their only motivation is money, and even when their hands are publicly caught in the cookie-jar, they can just switch presidents and board members, and continue on foreclosing on people’s homes who do not have connections to the Board, and making sweetheart loans to crooks like O’Brien, who do have connections to the Board.  For too long citizens have been abused by bank boards using their positions to help their buddies and harm innocent folks.  A bank would slit your throat if they thought they could make a buck.  And lawyers get a bad name….  

To *****, Judge Johnston had this to say:

“You participated in a sorry effort to cover this up … which almost resulted in an obstruction charge,” Johnston said. 

“Is this the way business is done in Greenbrier County? By being present when a bribe is slid across the table to a bank president?

Johnston then asked why ***** would have risked so much by setting up the bribes, but then not receive any money in return. Johnston also suggested this was not ***** first brush with illegal activity. Forbes told the court ***** turned down bribe money when approached by O’Brien.

“Why would a man of your experience get involved with this?” Johnston asked.

Lastly, the Register-Herald article noted that the case is still being investigated, and that the defendants will most likely enter prison within the next 30 to 45 days.  It will be interesting to see whether Judge Johnston is right that “the whole story has yet to be told….”

Note: There also is a new Charleston Gazette article this morning.

– John H. Bryan, West Virginia Attorney.

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.

Common-sense Sentencing

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This morning I witnessed the sentencing of a young man who, by driving drunk, killed his two best friends who were passengers in the vehicle he was driving. He cried remorsefully to the judge, and then both mothers of his deceased friends spoke to the court. They both pleaded with the judge to be lenient, and to give him community service in lieu of an active jail or prison sentence. One of the mothers suggested that he be required to talk with high school kids in the area about the dangers of drunk driving. There were a lot of tears all around, and it was quite moving to witness this.

In the end, the judge gave him about 2 1/2 years and suspended the sentence, giving him 2 years probation and 200 hours community service. As part of the community service, the judge implemented the suggestion of one of the grieving mothers, that he speak to high school kids about the dangers of drunk driving. Most defendants in this situation have the book thrown at them, and indeed they deserve it for robbing the lives of others because of their own foolish selfishness. But in this case, you could see that the kid was really suffering for what he had done. And the mother’s had lost everything, and this was closure to them. This young man was the best friend to both of their sons. To send him to prison or jail would not have helped anybody. Hopefully he will have an impact on some young kid sitting in a classroom, and a future tragedy will be prevented.

– 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.