West Virginia Sex Offender System Watered Down – and sometimes unjust

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From the Register-Herald today:

A Beckley man has been arrested and charged with his second offense of “failure to register as a sex offender.” Well, the guy was registered, you can look it up yourself on the WV Sex Offender registry, found here.

What crime did he commit? His wife (presumably) bought a car and it had his name on it. He didn’t notify the State Police within the required amount of days the statute requires. If you didn’t know, a conviction as a sex offender requires the person to notify the State Police anytime they do or buy anything.

I don’t have a problem with this when it comes to real sex offenders – you know, the child abductors and child molesters, etc. In fact I think we should increase the penalties and protections against these predators. But any “sexually-motivated” conviction brings the requirement to register as a sex offender for life. That waters down the purpose of the sex offender registry. Not every sex offender is dangerous. Not every sex offender deserves to be subjected to the sex offender registry.

What about the guy charged in this case? A glance at his “offender details” reveals that he was convicted in the year 2000 of two counts of 3rd degree sexual abuse. He was given a suspended sentence and 15 months probation – so he did not do any jail time. What is “3rd degree sexual abuse” exactly, and how is that different from 3rd degree “sexual assault?.” Third degree sexual “assault” in West Virginia is essentially statutory rape – sexual intercourse between someone 16 or under and someone over 16 and also 4 years older than the “victim.” I put “victim” in quotes because many times the “victim” is absolutely old enough to be responsible for his or her actions and that fact should not be ignored. The “Assault” charge is a felony and carries up to 5 years in prison.

Third degree sexual “abuse” occurs when one person subjects another person to “sexual contact” without the latter’s consent, when such lack of consent is due to the victim’s incapacity to consent by reason of being less than 16 years old. What is “sexual contact?” It could be slapping someone on the rear-end, or an improper touching of any sort. It doesn’t take much. Actually it could just be a lie. Poor saps are convicted all the time from some 15 or 16 year old girls testimony before a jury, and without much more evidence – and it could very well be a lie. The only defense to this is a good lawyer who can talk some sense into the jury.

Lastly, the victim must be less than 16 years old. That means that the old-farts in the state legislature decided that a young girl on the day before her 16th birthday is absolutely incapable of forming her own decisions, she cannot consent to sexual conduct, but one day later, this 16 year old girl can have all the sexual escapades that she wants. In one magical day, she has become a wise and responsible adult.

So what about the guy in the article? I have no idea what the facts in the case are, but it could be relatively minor, or he even could be innocent. On the other hand, he could have done something more serious and pled down to this charge. Who knows. The point is, that even for relatively minor “sex offenses,” non-dangerous people are subjected to a life of being charged with felonies every time they buy a new car or go on vacation. The charge they put on this guy is a felony and brings 10 to 25 years. And the original charge that he was convicted of was a misdemeanor and only carried a potential penalty of up to 90 days in jail… Think about that. But hey, just like lawyers, these people do not make sympathetic victims and no one is going to help them.

You can read the full article here.

– John H. Bryan, West Virginia Attorney.

Man Charged With Shooting Dog 5 Times

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From the Charleston Daily Mail:

A man in Boone County was charged with shooting a chocolate lab 5 times with a pistol, allegedly in self defense. The dog’s name is Titan, which is fitting given that he has apparently recovered.

Something that I have learned in the practice of law is that there are evil people out there. Many of those who are evil, or are sociopaths, hate or dislike animals. Likewise, most people who love animals are not evil.

But then again, the guy could have been acting in self defense. But if so, what was he doing already armed with a pistol. Was he looking for trouble? Was he anticipating having to shoot the dog? Certainly he could have a concealed weapon permit, in which case there would be no problem. Or, he could have been on his own property, in which case he can have a gun on him if he so chooses. But I suspect that this was just a bad guy with a propensity towards viciousness towards animals.

People complain about domestic violence in West Virginia, but what about animal abuse… Before I moved to West Virginia, I had never seen people actually swerve to hit an animal crossing the road. The people that do this are the usual suspects: either driving a piece of junk truck with no muffler, or driving a mustang with (you guessed it) Flowmaster exhaust. I’m all for hunting. But there is a difference between hunting and killing, and evil viciousness for that matter.

You can read the full article here.

– John H. Bryan, West Virginia Attorney.

More Justice in Magistrate Court…

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Although I stated in a previous post/rant about magistrate court in West Virginia that I do everything in my power to prevent having a bench trial in magistrate court (rather than a jury trial), I was forced yesterday to try a case in magistrate court.

The reason I was forced was this: my client initially requested a jury trial, but the court was dragging it’s feet in scheduling one and she wanted to get the matter over with. Against my advice she requested a bench trial instead. The good news was that most of the State’s witnesses did not show up, so I got two of the three charges dismissed. The bad news was that the officer could still testify to one charge. So we went for it.

We didn’t even get through the first witness’ testimony. The prosecutor objected to one of my questions on cross examination. As he was arguing his objection, the magistrate made the final ruling in the case. I was shocked. I hadn’t even had the opportunity to finish my cross examination, or the opportunity to call any witnesses, or the opportunity to have a closing statement, or the opportunity to discuss the case law. I think the prosecutor was dumbfounded as well.

Moral of the story? Request a jury trial. Unless of course, you want to be convicted.

– John H. Bryan, West Virginia Attorney.

Contractor Prosecuted in Raleigh County – and thats a good thing…

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From the Register-Herald today:

Matthew Peelish, a Raleigh County contractor, pled guilty to 3 counts of felony obtaining goods by false pretenses for taking money from people and not completing the work, and for obtaining materials from local merchants on an account and refusing to subsequently pay. The Court held him to task and sentenced him from 2 to 20 years.

This is extremely common here in Monroe and Greenbrier county, yet no one is ever prosecuted for it. Everyday people are prosecuted for some ridiculous things, and in these situations, you have real victims that lost real money. Yet 9 times out of 10, they have to resort to a civil action, which leaves them trying to collect a judgment years into the future, or worse, from a trustee in bankruptcy. The problem often cited by prosecutors is that it is difficult to show the requisite intent (intent not to pay at the time the goods are taken or money accepted) to prove the charges. But then again, since when do judges or juries hold prosecutors to their burden of proof anyways?

It really hurts a local business when a deadbeat contractor runs up an account of 5, 6 or 7 thousand dollars and then skips out on the bill. It should be prosecuted. Bravo to the Raleigh County Prosecuting Attorney.

You can read the full article here.

– John H. Bryan, West Virginia Attorney.

Mom Robs Slot Parlor With BB Pistol, Children in-tow

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From the Charleston Gazette today:

This is another one of those “only in West Virginia” items…

A St. Albans woman, who has since qualified for the Parent of the Year award and the Intellectual Criminal of the Year award, robbed a video slot parlor with a Crossman BB pistol. She held it to the clerk’s head and stole her cell phone and keys. It didn’t say whether or not she took the clerk’s car with the keys, I’m assuming she did not – since she only had to escape a few houses down.

She was found sitting on a porch a few houses away a short time later by police. She had the cash, the keys and the cell phone – and the kids I’m assuming – with her on the front porch.

She later told police that she just wanted a better life for her kids. Well, this is probably the best thing that could happen to her kids because now they will be raised by someone else – anyone else.

What an idiot.

You can read the full article here.

– John H. Bryan, West Virginia Attorney.

Black Market Gas in Southern West Virginia

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Psst… Hey buddy, want to buy some gas?

Apparently the future of crime in southern West Virginia lies with black market gas. According to an article in the Bluefield Daily Telegraph today, law enforcement is preparing for thieves stealing tanker trucks and stealing large quantities of gas from gas stations.

I can picture it now… Gas thieves will be the new robin hoods, stealing from the gas companies and selling to the poor at a substantially-reduced rate. You might play up the robin hood theory to the jury. It could work.

You can read the full article here.

– John H. Bryan, West Virginia Attorney.

Got Cell Phone Records?

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If you have a case in which you will need to subpoena cell phone records, no need to reinvent the wheel…

I came across this posting of Mark Bennett’s regarding addresses of the major cell phone companies to which to serve subpoenas, which can be used in either civil or criminal cases.

Here is the link.

– John H. Bryan, West Virginia Attorney.

Important Supreme Court Decision

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On Friday, the US Supreme Court settled an argument that had been raging for decades: does the 2nd amendment apply to individuals, or does it apply to “well regulated militia’s”? Thankfully, the Supreme Court got it right this time. West Virginians know this better than anyone else: you can’t depend on the police to wake up, take a shower, and drive thirty minutes to your house to protect you from danger. You have to be able to protect yourself and your family.

What still makes me sick, is that some guy (or gal) convicted of some stupid non-violent felony that has nothing to do with guns, will never be able to own a gun. What about his children? Should they be at the mercy of some armed intruder who is aware of the fact that they cannot protect themselves? Should they be required to die because some bleeding-heart know-it-all is anti-gun?

For a great analysis of this recent Supreme Court decision, take a look at this post from the South Carolina Criminal Defense Blog, by Bobby Frederick.

– John H. Bryan, West Virginia Attorney.

Sentencing Continued in Greenbrier County “Cattlegate” Case

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I apologize for not posting much this week, but it has been one of those end-of-the-month weeks…

As I had previously detailed, the sentencing for O’Brien, Henthorn and **** was scheduled for Friday, June 30, but now has been continued until sometime in the fall. This was likely a joint motion as probation officers had likely not completed their presentencing reports, which the lawyers must rely on and respond to accordingly, depending on what they contain. It’s important to remember that in federal court, the most frequent claim for legal malpractice comes out of mis-advice given by attorneys, to their clients, regarding the federal sentencing guidelines, so it is important to get it right the first time.

For those of you who don’t know, this is just a case that probably repeats itself in all other small towns across the country. You have good country folks who work hard to earn a living. Then you have the fat cats, who get high-on-the-hog by ripping off the working folks. Most times they are greedy, compulsive, narcissistic liars who have an obsession with all things underhanded. They will do anything for money – anything that is, except for actually earn it. They look down at the working peons as a bunch of suckers who were not blessed with the infinite wisdom they were born with, when in reality they were just born as spoiled rich kids with a lack of morals and manners.

It still blows my mind that this bank CEO, and they almost always become extremely rich legally, would throw his life away for $10,000 worth of bribes… In all likelihood, this was not the first time, there probably were many other bribes passed under the table, and that was what made it worth it in his mind, not this particular bribe.

You can read the full article here.

– John H. Bryan, West Virginia Attorney.

WV Father Convicted of Infant’s Murder 27 Years Ago

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From the Charleston Dail Mail:

Apparently, there was an autopsy performed on this child back in 1981 which indicated that the infant died as a result of being shaken, but it was never delivered to the prosecutor’s office. Talk about gross incompetence…

Just remember, these are the same medical examiners that make mistakes in the other direction as well. Medical examiners for the most part couldn’t get a job working in a hospital, or in private practice working on actual living beings. Their incompetence and skewed sense of purpose can’t maim or kill a cadaver, but they can cause an innocent person to get convicted.

Read the full article here.

– John H. Bryan, West Virginia Attorney.