The newly-indicted justice actually didn’t vote, but we recently a won a big case. It was a case we had tried to a jury, and won. Months down the road, the trial judge threw out the verdict and tried to take it away from us. But we appealed, and won. The verdict has been reinstated.
It actually created some new law in West Virginia:
(Basically, a trial lawyer needs to complain about insufficiency of the evidence before the case goes to a jury, not after. If you roll the dice and lose, you can’t claim afterwards that the jury didn’t have enough evidence.)
Under the WEST VIRGINIA RULES OF CIVIL PROCEDURE , when a party has failed during a jury trial to make a motion for judgment as a matter of law under Rule 50(a) challenging the sufficiency of the evidence, that party has waived the right to mount any post-trial attack on the sufficiency of the evidence under Rule
50(b). Additionally, if the party moves for a new trial under Rule 59 and attempts to challenge the sufficiency of the evidence supporting the verdict, then the scope of review of the motion is confined to whether there was any evidence to support the jury’s verdict, irrespective of its sufficiency, and which, if not addressed by the court, would result in a manifest miscarriage of justice.
Back in 2010, I wrote a post entitled, So you want to sue the police . . . . , and it has had an overwhelming number of reads. Well, it’s been 8 years since then, and I’ve learned a lot I’ve tried cases since then. Appealed cases. Settled cases. Won cases. Lost cases. I’ve reviewed probably thousands of allegations. Since this appears to continue to be a popular topic, here is part II.
Have documentation. When people call our office about allegations of police misconduct, and/or civil rights violations, we first ask them if they have any documentation. Here is what we need:
Police Report. This could be what is referred to in West Virginia as a “Criminal Complaint.” Or, it could be any other official report containing a narrative, or version of the events, written by a police officer.
Medical Records. If the complaint is that injuries were caused by the police, we would like to see documentation of those injuries. Was there a hospital visit, or doctor’s office visit pertaining to the injuries? If so, you are entitled to the records, and we will need to review them.
Photographs. Again, if the complaint is that injuries were caused by the police, we would like to see photographs of the injuries.
Video Footage. It goes without saying that if video footage exists of the incident, we want to see it. It may be the case that footage exists, but the police are in possession of the video. In West Virginia, and most states, there is a right on behalf of private citizens to request that footage. This is called a Freedom of Information Act Request, or FOIA request. If criminal charges were filed, a defendant is going to have a right to receive a copy of the footage.
Don’t Wait. In West Virginia, you generally have 2 years to file a lawsuit based on a civil rights violation. Other states may have different statutes of limitations periods, even though they are all the same type of claim under federal law. In some cases it could be less. Don’t wait 2 years and then call us the day before the statute of limitations expires. We will not take the case. Yes, people do this.
Witnesses. Witness recollection of incidents gets worse over time. Witnesses may die and their testimony may be lost forever.
Evidence. Some evidence disappears with time. 911 records and transcripts may disappear in as little as 30 days if not requested.
Do not make a formal complaint to the police. At least not without acting through competent legal counsel. Police should never investigate themselves. But that’s exactly what happens in West Virginia, and many other states. In regards to the West Virginia State Police, in particular, and other larger agencies, this is a huge mistake that people make. Why?
Witness Intimidation. If an individual makes a formal complaint, for instance to the State Police, they are presented with a piece of paper they are forced to sign which warns them that they will be prosecuted if they are found to have given false information. This is purely a threat meant to having a chilling effect and to scare off victims of police misconduct who would otherwise complain.
Interrogation. The next thing that happens is, an “investigator” from the agency will want to interview you. This is not an actual unbiased interview. This is an interrogation. They will, perhaps secretly, record the questioning. Without a lawyer present, a detective will perform an interrogation. They will ask you leading questions. They will essentially take your deposition, but without your lawyer present. You will not be given a copy of the recording. The agency will save it, and later use the recording against you in court. I have seen it happen many times.
Building a defense. The “investigator” will obtain information from you – not for the purposes of determining whether the complaint is justified, but for the purposes of undermining your allegations. If you tell them a particular person witnessed the event, they can now go confront that person. They can tailor their defense to counter your exact allegations. I am generalizing. Of course some investigators are honest and will do the right thing. But for the purposes of protecting yourself, you should assume they are not.
Photographs. If the complaint pertained to excessive force, or resulted in injuries, the “investigator” will take photographs of you. These photographs may be taken at a time when injuries have become less visible, or healed. They may be taken in such a way as to minimize their appearance, rather than to document the truth.
Call an attorney experienced in civil rights law as soon as possible. You can’t call just any lawyer for a civil rights case. The area of civil rights, and in particular police misconduct, is a small niche area of the practice of law. Most licensed lawyers will be inexperienced in civil rights law. There are only a handful of competent civil rights plaintiffs’ lawyers in West Virginia who regularly handle these types of cases. I often get referrals from other lawyers across West Virginia who encounter clients with civil rights complaints. There are special aspects of the law in these types of cases that have nothing to do with automobile accident cases, or even criminal defense cases. Make sure whichever lawyer you call can demonstrate a record of successfully handling these types of cases. For years, I have been teaching other lawyers, government leaders, and law enforcement administrators, seminars on the law of police liability and civil rights litigation.
Last week I tried a four day jury trial in the Circuit Court of Monroe County, West Virginia, for a 98 year old lady named Isadora Beavers. On July 23, 2013, she walked into my office in her black and white polka dot dress, and hat, and demanded to see me. She told me that she had a power of attorney whom she suspected was stealing from her. She told me that her power of attorney was also the Vice President of her bank, and that she had been unable to get copies of her bank statements. That same day I helped her revoke the power of attorney and, at her request, demanded copies of ten years of her bank records from her bank.
Shortly afterwards she fell and was admitted into the hospital. I visited her in the hospital and told her what I had found in the past few years of her bank records – primarily lots of “cash” checks. I asked her if she spent much cash. She told me no, that she grew up in the Great Depression era and was thrifty with her money. She did admit that she indulged in getting a fancy haircut every once and awhile. And she liked to eat at Shoney’s. I told her that a deed existed giving her power of attorney joint ownership of all of her real estate, with a right of survivorship. She said, no, that property was supposed to go to her family after her death.
Not long after she began to decline pretty quickly. She started to suffer from dementia. Family members arrived in the area and petitioned the court to become her guardians and conservators, which was granted. They later contacted me and asked me to get the real estate back so they could finance the best possible medical care for Isadora. We demanded the return of the real estate. The response from the ex-power of attorney was that she would deed the property back, but wanted a release from liability in exchange for it. Not surprisingly, this offended pretty much all of Isadora’s relatives, and they gave me the go-ahead to sue her.
Last week, we presented the overwhelming evidence to the jury. They returned with a plaintiffs’ verdict on all counts: fraud, breach of fiduciary duty, conversion and unjust enrichment. They awarded $326,771.06 in damages against the defendant, Betty B. Brown. That included $175,000.00 of punitive damages.
In my closing argument, I asked the jury to send a message that financial abuse of the elderly will not be tolerated. I believe they sent that message loud and clear. By the way, all money collected is going to Isadora to fund her medical care and expenses. The defendant is going to be reasonable for paying all of our attorney fees and expenses as well.
I just went back through the Sawyer v. Asbury opinion in this post on the Use of Force Source. If you have followed the case on this blog, it’s interesting to take a step back and analyze the Court’s ruling as it finds its place in Fourth Circuit excessive force case law.
This is my 300th post, and unfortunately a sad one.
I was disappointed to see in the Charleston Gazette this morning that the federal courthouse in Parkersburg, West Virginia is closing up shop. I think I tried the last jury trial ever in that courthouse, which was the first trial there in around three years, if I recall correctly. The article says something to the effect that it couldn’t keep up with modern technology. Actually, we used all the modern technology which you would expect in a modern-day jury trial, including “ELMO” machines and video footage. They did have to bring the devices from Charleston for the trial – which was not a big deal.
One piece of modern technology which didn’t work there however, was the mute button on Judge Goodwin’s microphone. So he told the jurors to loudly talk amongst themselves whenever he said “beep” so that we could have side bar conferences. It worked amazingly well – in fact probably much better than a mute button. And everyone got a kick out of it.
The last day is this Friday. R.I.P. Parkersburg Federal Courthouse.
“Today the citizens of West Virginia, Maryland, Virginia North Carolina and South Carolina have more constitutional protections than they did yesterday,” John Bryan, Sawyer’s attorney, wrote in a statement.
“As a result of today’s ruling, which affirmed the District Court for the Southern District of West Virginia, law enforcement officers will be taught to treat people differently, and that if they fail to do so, there will be consequences. Because of Brian Sawyer, and the federal court system, millions of people have more freedom. And that is something I am very proud of.”
There was also an article in the Parkersburg newspaper:
ETA: We won the property dispute trial. We have been very blessed to have streak of wins in WV state-law easement disputes. Although they might seem boring, they are quickly becoming one of my favorite types of cases, second only to civil rights cases. I do enjoy interesting criminal cases. However, I do not enjoy the stress of gambling with someone’s liberty. I much rather prefer property rights or money. The worse case scenario is never the end-of-the-world.
We won the Sawyer case at the U.S. Court of Appeals for the Fourth Circuit. The audio from the oral arguments is one post down. Here is the opinion. I have been unable to discuss the case for about a year. Obviously, this is what has been happening. I believe this is, and will be, a very important decision. Although there was no new law created, this has greatly clarified, explained, and set the course, for future excessive force litigation and instruction.
Literally, on the courthouse steps. Settled for $200,000.00, paid by the Morgan County Commission. Ulysses Everett v. Seth Place and the Morgan County Commission. U.S. District Court for the Northern District of West Virginia. Federal 1983 lawsuit for excessive force and unreasonable search and seizure. It’s a tough call to choose to settle a case when you are prepared to try it before a jury, but in this particular case they had a damn good defense lawyer.
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.