Sawyer v. Asbury defendants asking the 4th Circuit to stop the trial

I know that many people have been following this case, so here is an update.  On Monday I was ordered by the U.S. Fourth Circuit Court of Appeals to respond to a Petition for Writ of Prohibition filed by the defendants in the Sawyer v. Asbury 1983 excessive force case.  The new jury trial on damages is scheduled for next week.  I was given until yesterday to respond.  Unless the Fourth Circuit says otherwise we are having a trial on Tuesday.  Here is our response:

(Yes I did this in two days, so please excuse any mistakes)

Judgment as a matter of law was just granted in Sawyer 1983 case

Unfortunately we lost at jury trial.  But we just received an order from the Federal Judge overturning the jury verdict and granting judgment in our favor.  There will be a new trial to determine damages.  Yes!

Update: Link to newspaper article.

2nd Update: Gazette article by Zac Taylor.  Some excerpts:

In his order filed Friday afternoon, Goodwin recalled the Los Angeles riots in 1991, sparked after a jury acquitted Los Angeles police officers in the beating of Rodney King despite video footage of the incident.

“The public had seen the tape. The Los Angeles riots ensued,” Goodwin wrote in the order. “Here and now, as there and then, the jury did what they thought was right but simply got it wrong.”

The judge said that law enforcement officers are constitutionally prohibited from inflicting “unnecessary and wanton pain and suffering” on detainees. He said that case law also prohibits officers from using physical force in response to chatter from detainees.

. . .

“The video clearly shows Deputy Asbury punching Mr. Sawyer in the face,” Goodwin wrote, “with the force of his blow knocking Mr. Sawyer’s face to the side.”

. . .

Asbury resumed choking Sawyer. The deputies then took Sawyer to the floor, went out of view for the camera for a short period before returning, and leaving the man on the floor, Goodwin said.

Sawyer stayed on the floor while the officers apparently went on with other tasks, Goodwin said. After a while, Sawyer managed to sit up. He was later taken to the hospital with a fractured nose.

 . . .

During the trial, Sawyer’s lawyer, John H. Bryan, asked the judge to make a ruling on the case based on the video. Goodwin said that he had “grave concerns” that the testimony of the officers involved contradicted the footage.

“I said in response to the motion that I was reminded of the Marx Brothers’ ‘Duck Soup’ movie, in which the heiress confronts Chico Marx dressed as Groucho and says ‘I saw’, and he replies ‘Who are you going to believe, me or your own eyes?’ ” the judge wrote.

TV News article.

The Order:

Sawyer case going to trial on 1983 excessive force claim

Today we received the Judge’s memorandum opinion and order denying the defendant’s motion for summary judgment, finding that the defendant police officer is not entitled to qualified immunity on our primary claim.  This means that we are going to have a jury trial, which is scheduled for later this month.

Another win in a West Virginia civil jury trial

We just finished a civil jury trial in southern West Virginia and came through with yet another unanimous verdict in our favor.  One interesting side note: there was one witness who was unavailable to appear due to health reasons, so his deposition was read to the jury.  You would think this would bore them to death.  But in reality it was halarious because the judge’s court reporter was playing the witness’ part and we had to act it out.  Given that the guy repeatedly accosted me verbally in the deposition, it had the jury laughing much of the time.

Victory in another West Virginia civil jury trial

We just completed another civil jury trial on Wednesday, and won.  This was in Greenbrier County.  We got everything we were asking for short of about a thousand dollars.  I truly do respect the fact that we have a system where we take everyday citizens from across the board and put them in the role of the ultimate decider of factual issues – to the point where they go through your numbers and decide what’s fair and what’s not.  Truly remarkable when you think about it.

You never know what will happen in a civil jury trial.

It has obviously been a long while since I have posted.  It seems that this time of year is the busiest, since everything rebounds from winter hibernation.  I recently tried two separate tough civil jury trials.  We won the first one, receiving a “plaintiff’s verdict”.  It was a case involving breach of a contract to convey corporate stock.  The case was close, but the jury ruled in our favor.  The second case was an extremely tough car accident injury case.  My client was hit by a power truck while attempting to make a U turn on an interstate.  The defendant was found negligent by the jury, but my client was also found guilty of comparative negligence.  In West Virginia, if the plaintiff is 50% or more comparatively negligent in the eyes of the jury, there can be no recovery.  We were close.  It was a tough loss.  This was a Mercer County case.  I thoroughly enjoyed the new “elmo” trial presentation system which was recently installed by the WV Supreme Court.

I felt more confident at the conclusion of the trial in the second case than I did for the first.  Yet we won the first and lost the second.  It just goes to show that you never know what will happen in a trial – especially in a civil trial.

Change of Venue in criminal cases – good luck

There was an article by the Associated Press published in the Charleston Gazette yesterday titled, “Venue change sought in state trooper injury case,” declaring that a change of venue is being sought for a man accused of hitting a West Virginia state trooper with his vehicle.  The defendant is also asking for the county prosecutor to be disqualified from the case.  Good luck.  The world of criminal defense is comprised of making motions, then losing them, and then trying the case and convincing at least one out of twelve jurors to hang the case.  Many people do not realize that it takes a unanimous twelve jurors to find a defendant not guilty.

In criminal defense, you always ask the judge for things, and you never get it.  You never do.  All you can do is make a record for appeal in case you lose the jury.  These motions for change of venue are always losers.  I have never received one.  I have made this motion in a small town murder trial.  I have tried this motion when representing the alleged infamous Hinton arsonist – which garnered even national media.  I can’t think of a more fitting case for a change of venue than that situation, where members of the community were demanding blood.  I can’t think of any possible situation where a fair jury would be more improbable.  But I didn’t even get it in that case.  I can’t even think of a case where they would grant one of these – unless of course you had a police officer, prosecutor or judge on trial.  That might get one.

You are entitled to a “speedy trial” in West Virginia

There seems to be a lot of confusion about the right to a speedy trial in West Virginia.  Let me help clear it up.  Whether you are charged with a misdemeanor or a felony, you are entitled to a speedy trial.  Actually, to an extent, you have a constitutional right to a speedy trial.  Generally, the constitution kicks in, with exceptions, at the one year mark.  Though, by statute in West Virginia, you are supposed to get a trial within 120 days unless you waive that right.

Essentially, your trial may be postponed, even without your waiver, beyond the 120 mark for “good cause,” which most times are merely the Courts’ scheduling difficulties.  This is generally known as the “one term rule,” since one “term of court” is generally 120 days.  A “term of court” is generally, as it applies to felonies pending in Circuit Court, a sitting of the grand jury and the subsequent period of hearings, motions, etc., which take place prior to the next sitting of the grand jury.  Generally the Circuit Courts have three “terms of court.”  Other types of “good cause” could arise.  Indeed, it would probably be a rare day that you get a dismissal based on speedy trial at the 120 day/ one term mark.

The “one term rule” is a creature primarily of legislative enactment.  It is easily circumvented, though it is a good target for courts to shoot for in providing a speedy trial to a defendant.  On the other hand, the “three term rule”/ one year rule, says that under pretty much no circumstances should a defendant, who has not waived this right, not be brought to trial within one year, or three terms of court.  This rule derives its’ authority from the West Virginia Constitution – or rather the West Virginia Supreme Court’s interpretation of the speedy trial guarantees of the West Virginia Constitution.

There are a few exceptions: insanity of the defendant, some behavior on behalf of the defendant that keeps witnesses away or the trial from logistically taking place, situations where a jury has previously sat and was unable to come to a decision (“hung”), or where the Defendant filed a motion to continue which was granted by the Court.  Thus, realize there may be implications to filing, or joining in a motion to continue.  This is one of those pitfalls that can catch an inexperienced criminal defense lawyer.

And it is important to note that these speedy trial guarantees do not just apply in Circuit Court.  They also apply in Magistrate Court in misdemeanor cases.

– John H. Bryan, West Virginia Attorney.

“Nasty Little Surprises” and “discovery”

Back in July of 2008, I posted about one of Mark Bennett’s posts on “NSL’s” – nasty little surprises.  A NSL is essentially exculpatory evidence which either the prosecution/State has not provided, or which they are completely unaware of.  The point was, since the deck is stacked against you to begin with, why disclose NSL’s which you discover in the course of investigating and preparing for your criminal jury trial?  After all, the chances of us winning to begin with are slim, and much of that is due to the way the system is set up.  If we let the prosecutor on to our theory of the case before our opening argument, he or she will inevitably do everything possible to shoot it down – either by offering deals to slum rats to testify to something different than what they have previously said, or by prepping the investigating officer to pontificating on the subject in such a way as to steal our thunder.  Of course, in a perfect world you should share exculpatory evidence with the prosecution/State so they could dismiss the case.  But that’s not usually how prosecutors work unfortunately.  They want a conviction, they want to win.  Many would rather diffuse your NSL and move ahead with prosecution.

The only problem is that in West Virginia, the defense is obligated to provide “discovery” to the State/prosecutor.

First of all, someone please tell me how that doesn’t violate the 5th Amendment of the US Constitution?  As defense attorney, I represent the defendant obviously.  In the United States, defendants in criminal trials have no obligation to ask even a single question, call even a single witness, or introduce even a single item of evidence.  They have the 5th Amendment right to remain silent.  But the state rules say that if I do call a witness or present evidence, I have to provide disclosure of such before the trial – sometimes by a particular date.

As if the system didn’t make it easy enough for prosecutors already….  If you hear prosecutors talk about trying cases, they make it sound as if they have such a difficult task.  They have to come up with such an enormous amount of evidence, and they have to prove so much….  In reality, being a prosecutor is a piece of cake.  You are set up to win.  In fact, to actually lose a case due to an acquittal in West Virginia, all 12 jurors have to unanimously vote “not guilty.”  With that low of a bar, it’s pretty hard not to win.  And yet, the State has mandated that we cannot ambush prosecutors with some types of NSL’s.

The practice of prosecution is basically preparing for, and conducting, direct examinations.  They’re their witnesses, they’re mostly cops or victims, or people with plea deals that come with a noose around their neck, held by the prosecutor, which require them to do the prosecutor’s bidding, or else.  And they prepare the witnesses and ask open ended questions and check off on their legal pad everything the person is supposed to say.  That’s pretty much it.  As defense attorneys, we engage in guerilla warfare with all of these witnesses.  We almost exclusively cross examine witnesses.  We have to learn, develop and master the art of cross examination.  It is much, much more difficult.  And more unpredictable.

When we call a NSL witness, we reverse the roles and put the prosecutor on defense – something they are not used to.

The “discovery” rules do not mandate that we provide all of our NSL’s to prosecutors.  We have to disclose the names and addresses of any witnesses, though generally not the substance of their testimony (as in civil cases).  Of course the prosecutor is free to have someone contact or interview the person to see what they are going to say.  Unfortunately, sometimes that consists of running criminal background checks on the person, and otherwise investigating the person as if they were a suspect in a crime.  We also have to provide copies or access to any exhibits or tangible evidence we intend on presenting.

The loophole here is in the substance of the witness testimony.  The prosecutor doesn’t necessarily have any idea what I will ask the witness on the witness stand.  He can interview the person before hand, but he may not be able to put 2 and 2 together before I do so for him/her in front of the jury.

I recently revealed some NSL’s to a prosecutor/court/jury during the course of a criminal jury trial.  The prosecutor was upset because I only revealed the identities of the witnesses the day before the trial, and he strenuously asked the judge to “suppress” my witnesses due to failure to comply with discovery rules by disclosing the witnesses well in advance of trial.

There are several problems with this:

(1) I only found these particular witnesses at the last minute, and therefore I could not have disclosed them earlier; (2) The witnesses had exculpatory evidence and law enforcement knew about them in advance, yet failed to disclose them to the defense; (3) If these witnesses had exculpatory evidence, shouldn’t the prosecutor, who’s job it is to see that “justice” is done, also be interested in that information – in finding the truth – and is it ever proper for the prosecution/State to suppress exculpatory evidence from a jury – a jury who is in the process of deciding the fate of a young man who otherwise would have a long, hopefully happy, life to live?

Of course the practical reality also is that, if the court did exclude/suppress these witnesses, it would be per se ineffective assistance of counsel and a mistrial would have to be declared.  So in reality, even if the court sympathizes with the prosecutor, the greater interest is in judicial economy, and no judge wants to declare a mistrial if it can be avoided.  Moreover, no judge wants to invite a reversal if no mistrial is declared and exculpatory evidence is suppressed due to failure of counsel to disclose or provide “discovery.”

When you really think about these things, you come to the realization that this is a scary world we live in.  There are so many damn laws, just about everything is illegal.  And prosecutors can be like dictatorial tyrants.  If they, or law enforcement, want you convicted of something, they will do it.  Only a defender of people – a defender of the constitution – may be able to save you.  And if you have to depend on the public defender or court appointed defense counsel to do this, they may not have the time/motivation/resources to conduct their own investigation and find exculpatory evidence.  The best protection from wrongful conviction is money.  Even if you have to borrow it, do so.  Hire a criminal defense attorney, the best you can afford.  Hire a private investigator.  Fight for your life.

– John H. Bryan, West Virginia Attorney

God, it feels good.

I haven’t posted in a good while.  The reason was that I had been preparing for a particularly contentious criminal jury trial.

I am happy to announce that this afternoon, after three days of trial, we finished closing arguments on the case, and the jury came back with two unanimous verdicts of not guilty.  It was probably the most emotionally difficult case I have ever struggled with.

The best part about it was, during my closing argument, I asked the jury, when they went into the jury room to begin deliberations, to pick a foreperson, sit down, and take a vote on whether there was any reasonable doubt.  If all hands were up, I asked them to come right back out and deliver a verdict of not guilty.

Apparently that is what they did.  They may have deliberated 10-15 minutes.  God, what a feeling.  It felt so good.  I don’t think I have ever wanted to win so bad.  And I don’t think I have ever put so much time, effort, and passion into anything.

My client was charged with first degree arson and conspiracy, both felonies, with a sentence of 3 to 25 years.  He had always maintained that he was innocent, and damn it felt so good to deliver him back to his family a free man.  He is a good guy, and his family had suffered through such a nightmare with the prosecution and accusations.  There’s nothing like standing before 12 jurors with somebody’s life and destiny in your hands.  It’s the worst time and it’s the best time.  Fighting [in the courtroom] for money is one thing.  But fighting for someone’s liberty – someone’s child, someone’s father – with their life in your hands….. there’s nothing like it.  God, it feels good.

– John H. Bryan