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.
Our Brief:
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.
Article in The West Virginia Record.
Article in The Journal.
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.
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.
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.
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)
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:
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.
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.
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.
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.
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.