Sustained Outrage

Supreme Court sets new precedents in domestic violence

It was big news last week when the state Supreme Court reversed and vacated Tonya Harden’s 2007 murder conviction. Harden, you will recall, killed her husband, Danuel Harden, with a shotgun he had used to beat and threaten her during what Justice Menis Ketchum described as a “night of domestic terror.”

Tonya Harden(That’s Harden’s booking photo, from September 2004, on the right. Her two black eyes are obvious, but the puncture wound to her right forearm, bruising to her chest and arms and her fractured nose aren’t visible.)

By a 4-1 vote, with Chief Justice Brent Benjamin dissenting, the justices ruled that the physical and sexual assaults by Harden’s husband and his threats to kill her and their children informed her state of mind and were relevant to her claim of self-defense.

As Angie Rosser of the West Virginia Coalition Against Domestic Violence and the Associated Press’ Tim Huber have pointed out here and here, the 44-page opinion sets some new precedents in West Virginia law. It’s a pretty big deal when the Supreme Court issues new precedent, so the new syllabus points are worth repeating here:

–Where a defendant has asserted a plea of self-defense, evidence showing that the decedent had previously abused or threatened the life of the defendant is relevant evidence of the defendant’s state of mind at the time deadly force was used. In determining whether the circumstances formed a reasonable basis for the defendant to believe that he or she was at imminent risk of serious bodily injury or death at the hands of the decedent, the inquiry is two-fold. First, the defendant’s belief must be subjectively reasonable, which is to say that the defendant actually believed, based upon all the circumstances perceived by him or her at the time deadly force was used, that such force was necessary to prevent death or serious bodily injury. Second, the defendant’s belief must be objectively reasonable when considering all of the circumstances surrounding the defendant’s use of deadly force, which is to say that another person, similarly situated, could have reasonably formed the same belief. Our holding in Syllabus Point 6 of State v. McMillion, 104 W.Va. 1, 138 S.E. 732 (1927), is expressly overruled.

–Where it is determined that the defendant’s actions were not reasonably made in self-defense, evidence that the decedent had abused or threatened the life of the defendant is nonetheless relevant and may negate or tend to negate a necessary element of the offense(s) charged, such as malice or intent.

–An occupant who is, without provocation, attacked in his or her home, dwelling or place of temporary abode, by a co-occupant who also has a lawful right to be upon the premises, may invoke the law of self-defense and in such circumstances use deadly force, without retreating, where the occupant reasonably believes, and does believe, that he or she is at imminent risk of death or serious bodily injury. In determining whether the circumstances formed a reasonable basis for the occupant to believe that he or she was at imminent risk of death or serious bodily injury at the hands of the co-occupant, the inquiry is two-fold. First, the occupant’s belief must be subjectively reasonable, which is to say that the occupant actually believed, based upon all the circumstances perceived by him or her at the time deadly force was used, that such force was necessary to prevent death or serious bodily injury. Second, the occupant’s belief must be objectively reasonable when considering all of the circumstances surrounding the occupant’s use of deadly force, which is to say that another person, similarly situated, could have reasonably formed the same belief. Our decision in Syllabus Point 2, State v. Crawford, 66 W.Va. 114, 66 S.E. 110 (1909), is expressly overruled.

Legal ethics: Jackson Kelly and black lung cases


In the Gazette and in our Coal Tattoo blog, I’ve written today about a legal ethics case involving West Virginia’s largest and oldest law firm, Jackson Kelly.

To summarize, one of the firm’s lawyers if facing misconduct charges based on allegations that he covered up evidence that a coal miner had black lung disease. The Statement of Charge filed by an investigative panel of the state Lawyer Disciplinary Board against Jackson Kelly lawyer Doug Smoot is posted here, and Smoot’s response is posted here. I’ve also posted copies of the two lawsuits against the firm here and here.

As I reported on this, at least one person directly involved in the case suggested to me that such issues shouldn’t be publicized until the proceeding is finished — that the public doesn’t have a right to know about ethics cases involving West Virginia lawyers until the matters are decided one way or the other.

Things are viewed a little differently here at The Charleston Gazette … the paper’s late publisher, W.E. Chilton III, took the issue all the way to the state Supreme Court, winning  a ruling that opened lawyer disciplinary proceedings to public scrutiny.  Among the holdings in that 1985 ruling, Daily Gazette Co. vs. Committe on Legal Ethics of West Virginia:

— Where formal disciplinary charges in an attorney disciplinary proceeding are filed, following a determination that probable cause exists to substantiate allegations of an ethical violation, the hearing on such charges shall be open to the public, who shall be entitled to all reports, records, and nondeliberative materials introduced at such hearing, including the record of the final action taken

— Once a complaint of unethical conduct in an attorney disciplinary proceeding is dismissed for lack of probable cause, the public has a right of access to the complaint and the findings of fact and conclusions of law which are presented in support of such dismissal.

— The right of public access to attorney disciplinary proceedings precludes utilization of private reprimand as a permissible sanction.

— By-Laws and Rules and Regulations of the West Virginia State Bar which govern public disclosure of lawyer disciplinary matters are unconstitutional under West Virginia Constitution art. III, § 17, when they fail to protect and vindicate the public’s interest in the integrity of the judicial system by unreasonably restricting access to information concerning formal disciplinary actions against lawyers, integral parts of the judicial system.

The Court speaks

In the wake of Monday’s decision by the U.S. Supreme Court to order West Virginia’s Chief Justice Brent Benjamin to step aside in the Harman Mining/Massey appeal, state Supreme Court spokeswoman Jennifer Bundy released several statements to the media via e-mail. The first, in its entirety:

“The West Virginia Supreme Court will follow the U.S. Supreme Court mandate,” the Supreme Court of Appeals of West Virginia said Monday.

Courts traditionally speak through written orders and opinions. In appellate courts that have multiple justices, administrative orders are usually signed by the chief justice and opinions are either signed by individual justices or issued per curium, meaning all the justices agree with the decision. So I contacted Jennifer to see if she would be more specific about the quote. That produced the following e-mail exchange:

Me: the Court said? All five justices? Can you clarify this attribution at all?

Jennifer: The Court said.bundy.jpg

Four hours later, Jennifer issued another statement on behalf of Benjamin, which began and ended with this sentence:

This release is personal and is not a release of the Supreme Court of Appeals of West Virginia.

(Jennifer previously issued this release — with no such caveat — about Benjamin’s “dispositive” Massey-related voting record on March 2, the day before oral arguments were scheduled before the U.S. Supreme Court in the Harman appeal.)

Here is Benjamin’s statement from Monday in its entirety:


Continue reading…

Remember when the Federalist Society couldn’t wait until West Virginia State Supreme Court Justice Joseph Albright had been buried before offering advice about what type of judge should replace him?

Well, now the same public relations firm is shopping “legal experts” who are willing to comment on the U.S. Supreme Court’s decision Monday regarding Chief Justice Brent Benjamin’s refusal to recuse himself from Massey Energy Co.’s appeal of the Harman Mining Corp. verdict. (Read the opinion here, and coverage by the Gazette and other media outlets here, here, here and here.)

Two of the “experts” made both lists: Blair M. Gardner, a former assistant general counsel for Arch Coal who has represented the coal industry for years; and Luke Lafferre, a personal injury defense attorney who has defended multiple companies from claims stemming from exposure to asbestos, excessive noise, silica and coal dust.

Yesterday’s e-mail also offered two new faces: C. Thomas Ludden, a Michigan lawyer who wrote a “friend of the court” brief in support of Massey; and Bradley A. Smith, a law professor at Capital University who served as a commissioner on the Federal Election Commission from 2000 to 2005.

Continue reading…

Cross-posted from Coal Tattoo


Just in from the U.S. Supreme Court, via The Associated Press:

The Supreme Court ruled Monday that elected judges must step aside from cases when large campaign contributions from interested parties create the appearance of bias.

By a 5-4 vote in a case from West Virginia, the court said that a judge who remained involved in a lawsuit filed against the company of the most generous supporter of his election deprived the other side of the constitutional right to a fair trial.

With multimillion-dollar judicial election campaigns on the rise, the court’s decision Monday could have widespread significance. Justice at Stake, which tracks campaign spending in judicial elections, says judges are elected in 39 states and that candidates for the highest state courts have raised more than $168 million since 2000.

The West Virginia case involved more than $3 million spent by the chief executive of Massey Energy Co. to help elect state Supreme Court Justice Brent Benjamin. At the same time, Massey was appealing a verdict, which now totals $82.7 million with interest, in a dispute with a local coal company. Benjamin refused to step aside from the case, despite repeated requests, and was part of a 3-2 decision to overturn the verdict.

You can read the opinion here.

Keith Peoples update

Friday night at 10:45, Charleston mayoral assistant Rod Blackstone e-mailed me a statement on behalf of Mayor Danny Jones and Police Chief Brent Webster (pictured below). The statement came in response to the acquittal of Keith Peoples less than an hour before. Peoples is a Charleston police corporal who was accused of double dipping.

Since the e-mail came too late to make it into the article I wrote for Saturday’s paper (deadlines, Rod, deadlines!), I thought I’d post the statement here:

Danny Jones“The investigation into double-dipping by members of the Charleston Police Department began when the former Police Chief discovered that Officer James Nowling had been paid for the same hours on at least two payrolls, including the Charleston Police Department.  An investigation produced evidence that Officer Nowling had been paid by Charleston taxpayers for 1700 hours for which he was on the clock for at least one other employer — and at times two others — for the exact same hours.  He made allegations that such double-dipping was rampant in the Charleston Police Department.  So in November 2006, we asked the Kanawha County prosecuting attorney to investigate whether that was indeed the case or not.  As a result of that investigation, a jury found Mr. Nowling guilty, and three other officers pleaded guilty.

brentwebster.jpg“When Officer Keith Peoples was indicted by a grand jury last year, he was placed on paid administrative leave and has not lost a single day’s wages while this case progressed. We accept tonight’s verdict and note the brilliant legal representation provided by former Assistant United States Attorney Dwayne Tinsley for the defense.  We expect Officer Peoples to be back on the job at the earliest available opportunity.  We trust this puts an end to the investigation of double-dipping within the Charleston Police Department, and we are glad to put this matter behind us.”

I hope to have more to report on double dipping soon. But in the meantime, I just ran into Peoples and Dwane Tinsley on Virginia Street, on their way back from City Hall. Peoples, still smiling from Friday, was carrying his service belt and other professional effects in a cardboard box. He said he had been cleared by Webster to go back to work.

Some good news on the domestic violence front

The news about domestic violence is so often tragic and brutal — such as Thursday’s conviction of a former prison guard for beating his 5-year-old daughter to death — that I thought I’d highlight some recent positive developments.

First, the state Supreme Court has now completed its regional summits on guns and domestic violence. (A statewide summit is scheduled for September.)

In addition to providing information about West Virginia’s now-active electronic domestic violence protective order registry, the two-day seminars brought together various people (law enforcement, prosecutors, victims’ advocates, judicial officers) who routinely deal with batterers and their victims. Attendees spent part of each summit brainstorming about how to best develop a new protocol for handling domestic violence cases, with a special focus on removing guns from the equation.

(Why? As Lisa Tackett, the Supreme Court’s director of Family Court Services reminded summit attendees in Charleston on Monday, there were 22 domestic violence-related deaths in West Virginia in 2008: 17 homicides and 5 suicides. All but three of those deaths were caused by a gun.)

Continue reading…

Policing the police, part 3

State Police patchSome of the people who commented on my last post think that the Gazette unfairly focuses on the West Virginia State Police and gives other agencies a free pass. I’m not sure that Charleston Police Chief Brent Webster and Kanawha County Chief Deputy Johnny Rutherford would agree, because I have had conversations a lot like the one I described with both of them on more than one occasion.

Both of those departments investigate allegations of officer misconduct internally. Well, the people who conducted the Charleston Police Department’s double-dipping probe were two senior officers, Capt. Kevin Perdue and Capt. Lex Williamson, and a retired CPD captain, John Tabaretti. (The CPD also has its own Professional Standards unit.)

The CPD objected vigorously — to the point of taking the matter to the state Supreme Court — when the Gazette requested time sheet records of its officers. The CPD’s position seemed to be, Trust us, we know what we’re doing. We don’t need the Gazette looking over our shoulder. Everyone should automatically have faith in the results of our investigation of our own officers. (In a unanimous opinion, the justices re-affirmed that payroll records are public and therefore subject to Freedom of Information Act requests.)

As far as reporting on allegations against the four troopers, it is worth noting that the media — the Gazette included — reports on allegations against suspects in criminal matters before they have been proven in a court of law all the time. (And with the blessing of law enforcement, who sometimes tell us when they will be taking certain suspects to their arraignments. Or do you think we just happen to have cameras at the courthouse every time there’s a “perp walk”?)

There’s a difference between making a complaint and filing a lawsuit. To me, it’s analogous to the difference between someone walking into a police station and saying, “My neighbor stole my lawnmower” and an officer filing a criminal complaint actually charging the neighbor with theft.

Continue reading…

Policing the police, part 2

“It’s our policy not to discuss personnel matters.”

That’s the standard answer reporters get when we call a ranking officer at a law enforcement agency and ask if any steps have been taken regarding an allegation of officer misconduct.

“But the public has the right to know if public servants…” we counter, only to run into another stock reply: “The results of internal investigations, if one was conducted, are confidential.” And that’s usually the end of it, because both of us know that internal records are protected by a Freedom of Information Act exemption, and if the police don’t volunteer any additional information, the press has no way of compelling them to produce it.

I ran into this very issue when I tried to figure out last year if any disciplinary action had been taken against any of the four troopers — Jason S. Crane, Paul A. Green, Kristy L. Layne and John K. Rapp Jr. — reportedly involved in the alleged June 2007 beating of Charleston lawyer Roger A. Wolfe while in police custody (and the alleged effort to cover up the incident).

Astute Gazette readers will recall that Layne was the trooper who issued tickets outside former Kanawha Circuit Judge Lyne Ranson’s wedding in July 2007. (Ranson told the Gazette that she felt that Layne and her boyfriend W.C. Moyers, a Kanawha County Sheriff’s deputy, targeted her guests because Ranson represented Moyers’ ex-wife in their divorce proceedings.) That incident led to Gov. Joe Manchin, who attended the reception, calling Kanawha County Sheriff Mike Rutherford at home.

Continue reading…

Policing the police (and their attorneys)

Charleston lawyer Roger A. Wolfe’s civil lawsuit against the State Police and four of its troopers over his alleged beating while in police custody is still in the discovery phase, and already things have gotten contentious.

(As I reported earlier, the U.S. Attorney’s Office has launched a grand jury investigation into the alleged beating. But this is a separate issue to any possible criminal charges.)

Wolfe asked for copies of the personnel files of the four troopers alleged to have been involved — Paul A. Green, Kristy L. Layne, Jason S. Crane and John K. Rapp Jr. — as well as any records of complaints of misconduct that may have been made against each trooper and any disciplinary action that may have been taken. This is hardly an unusual request during discovery, when both sides exchange information they plan on using during trial.

Incredibly, the State Police’s attorneys, John A. Hoyer and Virginia Grottendieck Lanham, refused, saying that the police have an exemption from disclosing this material under the state’s Freedom of Information Act. And it’s true, the FOIA law does not require the disclosure of “[r]ecords of law-enforcement agencies that deal with the detection and investigation of crime and the internal records and notations of such law-enforcement agencies which are maintained for internal use in matters relating to law enforcement.”


Continue reading…