The Dismissals Of St. Marys
A discovery dispute involving a bar discipline proceeding of the West Virginia Bar will be heard by the state Supreme Court of Appeals on January 23, 2024.
From the Amended Petition for a Writ of Prohibition
The facts of the underlying case involves the operation of a Program called the “Slow Down for the Holidays” (the “Program”), a collaboration between the Pleasants County Prosecuting Attorney, the City of St. Marys Police Department, and various Pleasants County magistrate judges. A.R. 1–3. Under the Program, each year, the magistrate judges and prosecuting attorney would agree to summarily, and with prejudice, dismiss certain agreed-upon traffic infractions during certain times of the year, in exchange for donations of gift cards or other consideration to the St. Marys Police Department. A.R. 1–2. According to the Statement of Charges filed against Brian K. Carr (“Carr”) in 2021, Carr participated in the Program as municipal judge for the City of St. Marys and as Pleasants County Prosecutor. A.R. 2. From 2018 to 2020, Carr allegedly participated in the disposition of at least twenty (20) cases through the Program. A.R. 6–90. Judge Sweeney had no involvement with the Program at any time, either during the time that it was administered solely by the City of St. Marys, or as a part of any of the court cases that were dismissed in furtherance of the Program.
After a DUI and drug possession case had been dismissed allegedly pursuant to the program
After the pending charges had been dismissed, attorney McCullough notified Judge Sweeney in his capacity as the Circuit Judge for West Virginia’s Third Judicial District of her recent involvement with the Program on behalf of Ms. Ward, and concerns that she had about its administration. A.R. 105, 118, 127. Upon hearing of the Ward case from attorney McCullough, Judge Sweeney had ethical concerns about it. A.R. 118, 127. Pursuant to his obligations under Rule 2.15 of the West Virginia Code of Judicial Conduct, Judge Sweeney contacted the Judicial Investigation Commission (“JIC”) and the Office of Lawyer Disciplinary Counsel (“ODC”) and informed them of the circumstances of the Program as relayed to him by Ms. McCullough. A.R. 118, 127. Judge Sweeney never made a formal written complaint, and neither the JIC nor the ODC required or requested that he do so. A.R. 118, 127.
Instead, the ODC exercised its inherent authority to conduct its own investigation sua sponte into the Program and its participants. A.R. 114–15, 118–19. Many respondents selfreported, including Carr. See A.R. 180. Eventually, the ODC issued formal charges against the Respondents, and the matter was ultimately referred to the Hearing Panel Subcommittee (“HPS”) of the Lawyer Disciplinary Board (“LDB”) pursuant to the West Virginia Rules of Lawyer Disciplinary Procedure. A.R. 3. The HPS has the power to conduct a hearing on the charges and make findings of fact, conclusions of law, and recommendations as to discipline. W. Va. Law Disciplinary Proc., Rule 3. The charges that were brought against each of the attorneys involved their participation in one or more of the cases that were disposed of through the Program. Given his role as Circuit Judge, and the manner in which each case was involved, Judge Sweeney had no involvement in any of these cases.
Stated issue
This Court should issue a writ of prohibition to prohibit the HPS from enforcing its Order and the Subpoena served on Judge Sweeney because (1) the information sought is protected by the judicial deliberative privilege, (2) subpoenas against judges cannot be granted unless the information sought in the subpoena is necessary to establish an essential element of the case or exceptional circumstances exist to warrant such discovery, (3) Judge Sweeney is not the complainant for purposes of Rule 3.4 and cannot be deposed in this case, and (4) Judge Sweeney should not have to produce documents that are privileged and are not in his custody as its legal custodian.
Briefs
10:40 a.m. State of West Virginia ex rel. Hon. Timothy L. Sweeney, Judge v. William Mundy, Chairman of the Hearing Panel Subcommittee of the Lawyer Disciplinary Board, et al., Case No. 23-342
Amended PetitionRespondent’s Brief – Carr, et al.Respondent’s Brief – ODC
The Intelligencer Wheeling News-Register reported on the wider bar investigation
A member of the Wood County Board of Education and a Clarksburg attorney are the latest to face ethics charges related to the investigation into Pleasants County Prosecuting Attorney Brian Carr and the St. Marys Police Department’s Slow Down for the Holidays program.
According to two separate statements of charges released by the West Virginia Lawyer Disciplinary Board, Board of Education member Justin Raber and Clarksburg attorney Jordan West are accused by the LDB’s Investigative Panel of multiple violations of the Rules of Professional Conduct for accepting plea deals for clients involving the dropping of criminal charges in exchange for donations of cash and gift cards to the Slow Down program.
Started in 2008 by the St. Marys Police Department, the Slow Down program would dismiss minor traffic infractions between October and December each year in exchange for donations of $50 gift cards or the equivalent of $50 in toys.
Pleasants County Prosecuting Attorney Brian Carr, the municipal judge for St. Marys at the start of Slow Down, became involved in the program in 2018 two years after Carr was elected as the county’s prosecuting attorney.
The LDB Investigative Panel charged Carr and Assistant Prosecuting Attorney Paul Marteney in the fall of 2021 of multiple violations of the Rules of Professional Conduct for dismissing select state misdemeanor charges between 2018 and 2020 in exchange for gift cards and monetary donations to the Slow Down program. Carr’s and Marteney’s cases remain paused due to a federal investigation by the U.S. Attorney’s Office for the North District of West Virginia into the Slow Down program.
Raber, an attorney in his own practice in Parkersburg, is a member of the Wood County Board of Education since 2018 and serves as the board’s president. He faces two counts and is accused of violating two Rules of Professional Conduct. In an email Monday, Raber declined to comment for this story.
He is accused of violating Rule 8.4, prohibiting lawyers from engaging in conduct involving dishonesty, fraud, deceit or misrepresentation; and engaging in conduct that is prejudicial to the administration of justice. He is also accused of violating Rule 3.3, stating lawyers “shall not knowingly…make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact of law previously made to the tribunal by the lawyer…”
In the first count, the Investigative Panel alleges that Raber represented Alex Mason in September 2018 who was charged with speeding, littering, driving left of center, improper registration and possession of alcohol by a minor. During a hearing on Nov. 13, 2018, Marteney made an offer to Raber’s client to participate in the Slow Down program in exchange for dismissal of the charges.
The client purchased 25 $100 gift cards at a cost of $2,649 on Nov. 14, 2018, and the case was dismissed by Marteney the next day, though Raber said his involvement with the case ended on Nov. 13.
“Because (Raber) represented to Defendant Mason that the misdemeanor cases could be disposed of in a legal manner in exchange for Defendant Mason’s payment of money or goods to the Slow Down for the Holiday program, he violated Rule 8.4(c) and Rule 8.4(d) of the Rules of Professional Conduct,” wrote Letitia Chafin, chairperson of the LDB Investigative Panel.
“Because (Raber), in conjunction with APA Marteney, represented to the magistrate court that the misdemeanor cases could be dismissed by the magistrate in a legal manner in exchange for Defendant Mason’s payment of money to the Slow Down for the Holidays program, he violated Rule 3.3(a)(1) of the Rules of Professional Conduct,” Chafin continued.
In count two, Raber represented Michael Dickison, who was charged in the fall of 2019 with driving under the influence of alcohol and first-offense driving on a suspended license. According to the statement of charges, Carr offered to move to dismiss the two charges in exchange for $2,500 in money or goods for the Slow Down program.
After a motion to continue the case until Dec. 9, 2019, was made, Dickison provided Raber with the $2,500 and requested that Raber take the payment to the City of St. Marys for the Slow Down program. Carr and Raber submitted a written motion to dismiss the charges on Dec. 9. According to investigators, there is no record that the $2,500 payment was made.
According to his LinkedIn page, West has worked for the Ira Richardson law firm in Clarksburg since 2019. He faces three counts of violating multiple Rules of Professional Conduct. An attorney representing West said Tuesday that his client had no comment and planned to save his defenses for the LDB Hearing Panel.
In count one, West represented Michael Orr, who was charged in March 2020 with driving with a revoked license for DUI. After several delays and continuations, Carr offered to dismiss the charge in exchange for a donation to the Slow Down program.
A ticket was issued for St. Marys Municipal Court with the notation “SDFH=2,000.00 in FINE PER PLEA DEAL,” short for “Slow Down for the Holidays” and the amount of the donation required. On Dec. 14, 2020, Carr received notice of the payment and made a motion to dismiss the charge. A receipt provided by the St. Marys Municipal Court confirmed the payment of $2,000 worth of gift cards to the Slow Down program.
In count two, West represented Kenneth Lee, who was charged in 2020 with having a fraudulent motor vehicle registration or plate and obstruction. Carr made an offer to Lee to dismiss the charges in exchange for donations to the Slow Down program.
A ticket was issued in St. Marys Municipal Court with “SDFH X5” listed as the municipal violation. The municipal ticket was dismissed on Oct. 23, 2020, after Lee paid $250 in gift cards to the Slow Down program. The criminal charges were dismissed in Pleasants County Magistrate Court on Nov. 5.
In count three, West represented Jonathon Bailey who was charged Nov. 1, 2020, with first-offense driving under the influence and failure to drive with care. Sometime before Nov. 30, 2020, Carr offered to dismiss Bailey’s charges in exchange for donations to the Slow Down program. A municipal citation was made with the notation “SDFHX30.”
That same day, Bailey paid $1,500 in gift cards to the Slow Down program, but Carr did not dismiss the charges against Bailey until former Magistrate Randy Nutter entered an Aug. 12, 2021, order dismissing the charges.
“Despite Prosecutor Carr, (West), and the Court’s knowledge that Defendant Bailey has paid the money to Slow Down for the Holidays program, this criminal case remained open and pending and Defendant Bailey remained subject to his original bond conditions,” Chafin wrote. “As a result of (West’s) failures, Defendant Bailey’s criminal charges were pending for an additional nine months…”
Raber and West are the most recent charges released by the LDB. A statement of charges was released the first week of December for Martinsburg defense attorney Harley Wagner, who was charged with one count of violating the Rules of Professional Conduct.
(Mike Frisch)