Category Archives: Wrongful Imprisonment

Braxton County Wrongful Arrest Case Working its Way through the System…. Can you lie to the police in West Virginia?

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I don’t believe I ever posted on this case:

https://wvrecord.com/stories/511259277-woman-sues-braxton-county-sheriff-s-deputy-after-allegedly-being-unlawfully-incarcerated

The Rosa O’Neal Fourth Amendment case against Braxton County, and Deputy Bryce Scarbro.  This is an interesting case because it brings up what is commonly referred to as a “Franks Claim.”

In West Virginia, unless a warrantless arrest is made, that means that a police officer usually wrote out a “Criminal Complaint,” and submitted it to a magistrate for their approval.  This is basically an affidavit for an arrest warrant.  If the arrest was “wrongful,” you can’t sue the magistrate because they have absolute immunity.  You can only sue the police officer who submitted the document to the magistrate.

If the magistrate approved it, then there is basically a presumption that there was probable cause, and therefore not a wrongful arrest.  That leaves you in the position of proving that the officer who wrote the arrest warrant application included false statements, or material omissions, and that they did so with a certain degree of incompetency, or intentionally.

So generally, to sue for Wrongful Arrest in West Virginia:

  1.  If there was no arrest warrant, you can just prove there was no probable cause;
  2. If there was an arrest warrant (Criminal Complaint signed by a magistrate), then you are required to show false or misleading information was included in the affidavit to the magistrate which, had it been known to the magistrate, probably would not have been signed because there would have been no probable cause.

We are dealing with option No. 2, which isn’t easy.  So, did the police officer mislead the magistrate, and was it just a stupid or reasonable mistake, or was it really incompetent and/or done maliciously or purposefully?

Rosa O’Neal was a 66 year old lady who had never been in trouble in her life, who was physically arrested for allegedly lying to a deputy about two fairly innocuous facts.  She spent 15 hours in jail, and then was released onto the side of the road to hitchhike home.

I took the deputy’s deposition, and he claimed that it is always illegal to lie to a deputy in West Virginia, and because he’s Mr. Truth and Justice, and had her arrested.  That’s just not true.  It’s only illegal to lie to a deputy if it pertains to a material topic for an official felony investigation.  It’s not illegal to lie about a misdemeanor investigation, per se.  And it’s not illegal to lie about something irrelevant; or about something that’s not part of an investigation….

Lies to a police officer in West Virginia? Depends on what the officer is investigating:

  1. Felony Investigation:  A person who, with intent to impede or obstruct a law-enforcement officer in the conduct of an investigation of a felony offense, knowingly and willfully makes a materially false statement is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than $25 nor more than $200, or confined in jail for five days, or both fined and confined.  The provisions of this section do not apply to statements made by a spouse, parent, stepparent, grandparent, sibling, half sibling, child, stepchild or grandchild, whether related by blood or marriage, of the person under investigation.  Statements made by the person under investigation may not be used as the basis for prosecution under this subsection.  For purposes of this subsection, “law-enforcement officer“ does not include a watchman, a member of the West Virginia State Police or college security personnel who is not a certified law-enforcement officer.
  2. Misdemeanor Investigation: A person who by threats, menaces, acts or otherwise forcibly or illegally hinders or obstructs or attempts to hinder or obstruct a law-enforcement officer, probation officer or parole officer acting in his or her official capacity is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than $50 nor more than $500 or confined in jail not more than one year, or both fined and confined.

So option 2 is your basic obstruction.  It actually doesn’t say anything about lying.

Anyways, discovery was completed in the O’Neal case.  Depositions were taken, and everything has been submitted to the federal judge, who will decide whether the evidence is sufficient to present to a jury…..

McClurkin Petition filed before the South Carolina Supreme Court

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Here is a copy of the petition recently filed with the South Carolina Supreme Court, in an attempt by the South Carolina Actual Innocence Project to reverse the murder conviction of James McClurkin.  This will actually be the FIRST TIME an appellate court has ever examined the facts, or even been presented with the facts, surrounding James’ conviction.

McClurkin Petition to the SC Supreme Court

If the petition is granted, and James’ conviction is reversed, it will re-set the statute of limitations on many of his civil claims.  If not, the civil claims will face substantial hurdles.  Let’s hope that for once, the criminal justice system in South Carolina does right by Mr. McClurkin.

What kind of paperwork is generated during 40 years of wrongful imprisonment?

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This is it.  This is the paperwork generated by the justice system during 40 years of wrongful imprisonment.

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People assume that people convicted of murder get a large amount of appeals, and have judges looking over their case to make sure everything was constitutional and fair . . . .  Nope.  This folder contains no actual direct appeal of James McClurkin’s murder conviction.

His lawyer who represented him during the 1977 trial which convicted him dropped the ball completely.  He filed the notice of intent to appeal, but never actually followed through.  Apparently he was waiting on payment from Mr. McClurkin’s family prior to filing the appeal.  However, James’ father, who had hired him initially, passed away two weeks prior to the trial, and had spent all he had on James’ trial.  The result was that Mr. McClurkin did not receive a direct appeal for his murder conviction.  The State of South Carolina filed a motion to dismiss the notice of intent to appeal based on the failure to take any action beyond filing the notice.  So the “appeal” was dismissed forever.  What followed is paperwork which mostly discusses legal technicalities such as failure to comply with deadlines, and the discussion of rules which forbid inmates from bringing up old issues.  It doesn’t appear that Mr. McClurkin ever had the assistance of a lawyer at all up until 1992, when the real murderer confessed.  Every document James filed throughout his incarceration always mentioned first that James had exhausted his appeals.  Well, he never got an appeal, and it is a fiction – a lie – that he exhausted his appeals.

The notoriously racist trial judge, Judge Moss, who in 1985 created “controversy” by using the “N word” from the bench (in response to black protestors following the conviction of a black man accused of shooting a white man – ironically similar to James’ conviction).   Here is an article I tracked down from January 28, 1985, as it appeared in the South Carolina Herald-Journal.

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This file contains almost no discussion of the evidence upon which James’ murder conviction stands.  At one point, a lawyer for the South Carolina Appellate Public Defender’s Office filed a motion to withdraw from representing James due to the case being “without merit.” He didn’t bother to mention the evidence from the 1970’s, or the lack thereof.  He didn’t even look into the 1992 confession and testimony of the real murderer.  This was 2004.  James would spend another 12 years in prison.

This should be a real wake-up call.

Our new mission: South Carolina man wrongfully imprisoned for murder from 1977 through 2016

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We are pleased to have been hired to represent a man named James McClurkin.  James was convicted of murder in 1977.  In late 2016, law enforcement appeared at his parole hearing and testified that the old murder case was reopened, and that James was innocent.  James was released.  He was 63 years old, and had been in South Carolina prisons since the age of 18.

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South Carolina is one of the states which does not provide compensation to innocent people who are wrongfully imprisoned and then later exonerated.  Hopefully that legislation can soon be enacted in South Carolina.  But until that happens, we are working hard to compensate Mr. McClurkin for the terrible injustice which occurred in his case.

Here are some of the media accounts of his release from prison:

Chester man paroled after 39 years for crime he denies. Were wrong men convicted?

Judge says Chester men must go to S.C. Supreme Court to seek exoneration for murder

‘I am free’: Chester man in prison 43 years goes home, still hoping to be exonerated

‘The air. It smells different. Like freedom.’ Man freed after 39 years in prison for murder police now say he didn’t commit

The sheriff said he didn’t do it and he was released from prison but stigma impossible to shake.

James McClurkin and his co-defendant were convicted of the 1973 murder of laundromat attendant Claude Killian.  James, and his co-defendant Ray Charles Degraffenreid, both African Americans, were convicted under the brutal 1970’s Chester County, South Carolina justice system, which involved, among other things, a presiding trial judge who was known for using the “N word” while on the bench.

The real murderer actually confessed in 1992, which was corroborated by the fact that he was convicted of a similar murder, and by the fact that he had no alibi on the night of the murder.  However, the justice system once again failed James, and he was sent back to prison for another 25 years. Now law enforcement reopened the case, and have concluded that the real murderer was telling the truth.  How did this occur?  Well, among other issues, the mother of the real murderer was apparently the maid of the prosecutor who prosecuted James and Ray Degraffenreid.

This sounds like a novel, but it’s not.  It’s real, and it was only uncovered because a courageous new sheriff was willing to give someone the benefit of the doubt, and double check an old case.  Follow along as we jump into this case and work to reverse the wheels of justice.

IF YOU LIVE IN SOUTH CAROLINA, PLEASE CONTACT YOUR POLITICIANS AND EXPRESS YOUR SUPPORT IN PLACING THESE CASES BEFORE THE GOVERNOR OF SOUTH CAROLINA.  BOTH JAMES MCCLURKIN AND RAY CHARLES DEGRAFFENREID SHOULD BE PARDONED BY THE GOVERNOR OF SOUTH CAROLINA.

You can donate in order to assist with James McClurkin’s living expenses through the following site:

https://www.youcaring.com/jamesmcclurkin-815274