West Virginia Lawyer Blog

In news that could have implications for West Virginia criminal defense attorneys, as well as defense attorneys throughout the United States, the Supreme Court recently ruled that police officers were permitted to conduct DNA swabs upon arrest.

In the case Maryland v. King, the Supreme Court upheld a state law in Maryland permitting officers to take DNA from those arrested, but not convicted, of serious crimes. The case involved the arrest of Alonzo Jay King Jr. for assault in 2009. At the time of arrest, police officers followed the state's DNA Collection Act and swabbed King's cheek without first obtaining a warrant. King's sample was placed in a database, where it proved to be a match for a 2003 rape case, which until that time had been a cold case. King was later charged with the 2003 rape and sentenced to life in prison.

King's lawyers appealed the sentence, arguing that taking DNA from a criminal suspect without a warrant violates the suspect's rights under the Fourth Amendment. The Fourth Amendment provides that people should "be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

Normally, police do not conduct a search unless they have a warrant. Even in cases where they need only probable cause -- such as an automobile search -- strict rules are followed: for instance, a police officer can search the entire vehicle, but not the vehicle's passengers.

In this case, in a 5-4 ruling written by Justice Anthony Kennedy, the Supreme Court found another exception. Kennedy wrote that the DNA swab was a "minor intrusion" on the same level as a routine booking procedure involving a photograph and fingerprinting, which is not considered a violation of the Fourth Amendment. Kennedy was joined in the majority by Chief Justice Roberts, Justice Breyer, Justice Alito, and Justice Thomas.

Continue reading "United States Supreme Court Holds That DNA Swabs Do Not Violate the Fourth Amendment in Maryland v. King" »

In what may be good news for West Virginia families, a recent survey from Lending Processing Services found that across the nation, the number of Americans involved in the foreclosure process has fallen by almost 25% since April 2012. Likewise, delinquency rates have fallen below 6.5% for the first time since 2008.

The reason is credited to a rise in home prices and home sales as the financial crisis recedes into memory. At the same time, the decrease in foreclosures is linked to "record low" mortgage rates and government programs designed to help American families refinance their mortgages. Americans found that they could afford to make monthly payments if the amounts were several hundred dollars lower.

In addition to the Lending Processing Services survey, the National Association of Realtors reported that distressed homes -- homes lost to foreclosure or in a short sale to avoid foreclosure -- had declined from 28% of sales in April 2012, to 21% in March 2013, then finally to 18% in April 2013.

At the same time, all may not be as rosy as these surveys suggest. Economists claim that with fewer foreclosures, fewer houses are on the market, driving up home prices across the nation and preventing a more solid recovery. While buyer interest has gone up 31%, home sales have only risen 10% in that time. Several believe that the only way to put a damper on price growth is to increase the amount of home construction.

Regardless of what the drop in foreclosure rates means for the nation as a whole, it is undoubtedly good news for families in West Virginia and elsewhere that they don't have to give up their homes. An all-too-common feature of the financial crisis was that many were tricked into purchasing homes based on mortgages that they could never afford. While the mortgage companies were then able to package the mortgages and sell them to third-party investors, many families soon defaulted on their mortgages and wound up owing far more on their loan and interest than the house was worth. These families then either lost their homes to foreclosure or filed for bankruptcy to avoid losing their homes.

Continue reading "New Survey Finds That National Rate of Foreclosures Has Fallen Almost 25 Percent Within a Year" »

A former Jefferson County sheriff was recently sentenced to just over one year in prison for using excessive force while arresting a bank robbery suspect. Sheriff Robert Shirley was sentenced in federal district court, and faces 18 months of supervised release in addition to the time in prison. Shirley initially faced up to 10 years in prison, but his guilty plea to the charge of deprivation of rights under color of the law may have led to the reduced sentence.

Back in December 2010, Shirley, his deputies, and officers from other departments got involved in a high-speed chase after Mark Haines allegedly tried to rob a City National Bank, which ended with Shirley kicking Haines in the head upon arresting him. Haines had reportedly left his vehicle with his hands raised in surrender, only to be pushed against the bed of his truck by some of the accompanying police officers. Shirley then climbed onto the truck and kicked Haines repeatedly, supposedly with "deliberate and sadistic intention to inflict injury."

Shirley was later charged with using excessive force, and Haines also filed a civil lawsuit against Shirley. However, the civil suit was dismissed because individual officials cannot be named defendants, but rather the entity that the official represents must be named. At the time, Shirley represented the Jefferson County Commission. Because Haines failed to cite a policy that the Jefferson County Commission should have followed, the judge in the civil case found that Haines did not adequately establish that the County Commission was liable. It is unknown whether Haines will file a new civil lawsuit holding Shirley accountable. At present, Haines is serving a prison sentence of 225 months for robbing a BB&T bank.

This case illustrates why it is important for all criminal suspects to have experienced West Virginia criminal defense attorneys representing them. On paper, Haines does not look like an innocent who would elicit sympathy. Yet Haines was the recipient of very unjust behavior. If Shirley treated Haines with excessive force, then it is possible he engaged in other improper behavior during the arrest. Many times evidence can be thrown out in a criminal trial if the defense attorney can show that it was gathered improperly -- such as if it were obtained without a search warrant, or if the suspect admitted to information without being read his rights, or if a police officer tampered with an aspect of the investigation. Whether such evidence is considered may be the difference between a criminal suspect being convicted and exonerated.

All criminal suspects are guaranteed a right to legal representation under the Sixth Amendment of the Constitution. If the criminal suspect does not have the means to hire one outright, the court will appoint a public defender. Regardless, it is extremely important to find a competent, experienced criminal defense attorney. Not only should the attorney work to defend you from the charges, but he or she should also keep you fully informed as to what is taking place, and be willing to listen to you with regard to how you want to proceed in your case.

An Ohio resident recently pleaded guilty to taking part in a painkiller distribution ring that consisted of buying pills at locations both in-state and out-of-state and selling them at a Huntington auto repair garage.

Jeffrey King pleaded guilty to charges of conspiracy to distribute oxydocone and oxymorphone in federal court. He is the third person to be indicted on federal drug charges for this specific drug ring this year. One of the other men charged, Vernon Browning, has pleaded guilty as well.

King claims that he was recruited in spring or summer of 2012 by Browning, the one who allegedly organized the ring. Browning allegedly began funding and organizing trips to buy prescription pills as early as 2008. Browning and his associates then allegedly stored the pills in the auto repair garage. Browning would allegedly rent vehicles for trips to Atlanta and help his associates obtain driver's licenses so that they could get prescriptions from Georgia doctors.

King's mission was to go to Georgia to obtain prescription pills that would be sold in Huntington, West Virginia. In addition, King began making trips to a clinic in Charleston, West Virginia to buy pills, which were paid for up front by Browning. Should King be convicted, he faces a sentence of 20 years, along with a potential $1 million fine.

Whether you are a prosecutor or a West Virginia criminal defense attorney, the prescription pill mill epidemic is a concern. While this case demonstrates that a working pill mill does not need a doctor to be a co-conspirator, in many cases, one of the co-conspirators is a doctor. The doctor will write prescriptions for those who pay him or her, without bothering to conduct an examination to determine whether the prescriptions are actually needed. For instance, a physician in Logan County, West Virginia recently pled guilty to operating a pill mill out of his office. Dr. Gonzales-Ramos allegedly traveled from El Paso, Texas to Logan County every three months to illegally provide prescription painkillers. Pill mills operate throughout the United States, including West Virginia, which has one of the nation's worst drug habits.

Continue reading "Ohio Man Pleads Guilty For Taking Part in a West Virginia Painkiller Distribution Ring" »

Recently, several aggrieved customers filed a class action lawsuit against Ford Motor Company in federal court, the Southern District of West Virginia. They claimed that the Ford vehicles that they purchased, in the years between 2002 and 2010, had problems with sudden acceleration, with no means of overriding to prevent crashes.

The customers, represented by West Virginia vehicle accident attorneys and attorneys in other states, argue that the Mustang, Explorer, and Mercury Cougar lacked a braking system to override the electronic throttle control system. Ford began installing such a system from 2010 onward. The customers claim that between 2002 and 2010, Ford could have, and should have, taken action to prevent accidents that were foreseeable. Furthermore, Ford allegedly engaged in unfair and deceptive business practices, in that it deceived reasonable customers into believing that Ford vehicles were safe and reliable. The customers relied upon Ford's representations, and as a result, suffered damage. They seek both compensatory and punitive damages.

There are two notable aspects of this case: not only is it a class action lawsuit, but it is also a federal lawsuit. In order for this lawsuit to proceed in court, it had to meet certain requirements. As a class action, the lawsuit must have numerous injured parties (usually 40 or more); the injury must be sufficiently common to all of the parties; the "class representative" must adequately protect the interests of the class; and there are no conflicts of interest between class members. As a lawsuit qualifying for federal court, the issue must involve either a federal question (such as a violation of federal law or a treaty), or it must have (1) diversity (no plaintiff occupies the same state as the defendant) and (2) an amount in controversy above $75,000. It appears that this case is in federal court for the second reason.

In some ways, it is almost surprising that this case could even be litigated. Many large companies have become savvy at inserting arbitration clauses into consumer contracts, which state that if the consumer has a problem, the consumer waives the right to litigation and agrees to have the matter heard at an arbitration proceeding in the company's chosen forum. Most arbitrators are chosen supposedly for their "expertise" in the field, but they are not former judges or even lawyers, so they may not have much knowledge of the law. Moreover, the desire for business might make the arbitrator subconsciously biased toward the company. Yet arbitration awards, once handed down, are difficult to appeal in court.

Over the years, the United States Supreme Court has been very insistent that the Federal Arbitration Act of 1925 (FAA) preempts any state laws governing contract arbitration clauses. If that is the case, what can be done to give the consumer, usually at such a great disadvantage, any relief? One small exception carved out of the FAA is when an agreement is found to be the product of unconscionability (unequal parties or "surprise"), duress, or undue influence. So many courts will void an arbitration clause in situations deemed to be unconscionable.

Earlier this month, the Judiciary Committee of the West Virginia House of Delegates voted to reject sending a Senate Bill to the House floor for a vote. The Senate Bill would have made it a misdemeanor to keep "burglar's tools," such as hammers or crowbars, if that person intended to use those tools to commit a burglary. The purpose of the Senate Bill was to give law enforcement in cities such as Huntington more options for combating drug-related crimes.

Currently 35 other states have similar legislation, including neighboring Ohio and Kentucky. The mayor and police chief of Huntington had lobbied Senators representing the area to consider the bill. They argued that, presently, if they saw an individual walking down the street at night with a bag of tools, they had no recourse to take action until that person had committed a crime. With legislation making carrying these tools a misdemeanor, police could take preventative action. The legislation was introduced on the first day of the legislative session and passed the Senate unanimously.

However, many in the House of Delegates Judiciary Committee were concerned with what they viewed as the vagueness and overbreadth of the legislation. One delegate mentioned using a screwdriver to start the wipers of her old car, while another stated that his rural constituents frequently kept tools in their vehicles as part of their livelihood. The delegates stated that they were also concerned that the legislation might not be constitutional, having the potential to prohibit a wide range of otherwise permissible behavior.

Neither the House of Delegates nor the Senate mentioned whether the legislation would be reintroduced any time soon, with modified language providing limits that addressed the House Judiciary Committee's concerns.

We at the Wolfe Law Firm do not have an opinion about the merits of this bill. However, as a general matter, West Virginia criminal defense attorneys know how easily innocent people, or people who have committed small crimes, can be charged with committing crimes that they had nothing to do with, based on circumstantial evidence. Some people have even gone to prison based on these charges. The reasons are multifold. Some criminal suspects might be "indigent," or too poor to hire an attorney, and so they are assigned a public defender who may be overworked, with too few resources. The public defender, even if doing as good a job as possible, might miss some very important evidence that a suspect was innocent.

Continue reading "Judiciary Committee of West Virginia House of Delegates Votes to Reject Burglary Tools Bill" »

After nearly two years since the original ruling, a $91.5 million jury verdict in a nursing home negligence case will stand -- for now. Kanawha County Circuit Judge Paul Zakaib found that the size of the award was appropriate for punishing the corporate owner of HCR Manor Care, Inc. for intentionally failing to fully staff nursing homes in order to reap the most profits.

The case came about after an 87-year old woman died of dehydration after a stay of just 19 days at one of the local nursing homes in 2009. The woman's son filed a lawsuit against the nursing home, and among the key findings were that she had suffered head trauma from numerous falls and developed sores in her mouth that had to be scraped away with a scalpel. Furthermore, experts stated during the trial that the Manor Care staff failed to give the woman proper food and water, which may have contributed to her heath. After the case went against Manor Care in the amount of a $91.5 million verdict -- $80 million in punitive damages and $11.5 million in compensatory damages -- Manor Care showed intent to appeal to the West Virginia Supreme Court, arguing that the state's medical malpractice caps applied to this case, which would significantly reduce the amount to just $500,000 in non-economic damage. The other side argued that the medical malpractice caps were meant for physicians and were not meant to apply so broadly as to cover nursing homes.

The case eventually came back to Judge Zakaib for reconsideration. Judge Zakaib considered whether the medical malpractice caps applied and decided that they did not because Manor Care did not qualify as a "health care provider" under state law. Other details were discussed, including that Manor Care made $75 million in profit in 2009, and that in 2011, the nursing home lost its Medicare and Medicaid funding after state inspectors found numerous serious violations. Now that the circuit court has upheld the verdict, Manor Care once again vows to appeal to the West Virginia Supreme Court.

In the meantime, in a separate case, the West Virginia Supreme Court found that Congress never intended contract arbitration clauses to be applied to wrongful death cases -- so nursing homes could not use them to avoid wrongful death cases such as the one involving Manor Care. That case then went to the United States Supreme Court, which scolded the West Virginia Supreme Court for failing to consider the supremacy of the Federal Arbitration Act of 1925, and ordered it to reconsider the case. The West Virginia Supreme Court reconsidered the case within the FAA framework and found that an arbitration clause in a nursing home contract was "unconscionable."

It is questionable whether the West Virginia Supreme Court will affirm Judge Zakaib's ruling. But for now, families who lost their loved ones, and who have hired West Virginia nursing home negligence attorneys, ought to feel good about signs that the state court system will not try to stifle their ability to get justice. It would be disgraceful if nursing homes could starve and abuse their patients and get away with a mere slap on the wrist. If nursing homes knew that all they stood to lose was $500,000 in damages, too many would not hesitate to engage in harmful behavior if it meant increasing their profits. Hopefully the West Virginia Supreme Court will side with Judge Zakaib and find that the medical malpractice caps do not apply.

In a decision that could affect not only West Virginia criminal defense attorneys, but criminal defense attorneys across the country, the United States Supreme Court recently ruled that a dog sniff on a front porch could be considered a search in the case of Florida v. Jardines.

In 2006, the Miami-Dade Police department received an unverified tip through its crime-reporting tip line that a particular property was being used as a grow house for marijuana. Two months later, two detectives approached the residence with a drug-sniffing dog, while Drug Enforcement Administration (DEA) agents stood by as back-up units. There were no signs in the residence that anyone was at home. One detective approached the front door of the house, where the dog sniffed and alerted him to the presence of drugs. The other detective then approached the front door and smelled marijuana. The detectives subsequently prepared an affidavit for a search warrant, which was granted. The detectives then searched the house and discovered marijuana being grown inside. The homeowner was later arrested.

At trial, the defendant moved to suppress the evidence and was initially successful. However, the State of Florida, representing the detectives, appealed the decision to the Florida Third District Court of Appeal and was able to get it reversed. The Third District Court of Appeal claimed that, based on previous U.S. Supreme Court cases, a dog sniff was not an actual search. The cases included United States v. Place (where a dog sniffed luggage temporarily seized at an airport), City of Indianapolis v. Edmond (where dogs sniffed the exteriors of vehicles after they had been seized), and Illinois v. Caballes (which featured "minimally intrusive" dog sniffing at routine traffic stops).

The defendant then appealed to the Florida Supreme Court, which reversed the Third District Court of Appeal, finding that the Fourth Amendment drew a "firm line" at the entrance of one's home, and that the dog sniff constituted an unreasonable intrusion by the government in violation of the Fourth Amendment. Finally, the State of Florida petitioned the U.S. Supreme Court for a writ of certiorari, and the Supreme Court granted it in January 2012.

Its 5-4 opinion in favor of the defendant was written by Justice Scalia, with Justice Kagan writing a concurrence joined by Justice Ginsburg and Justice Sotomayor, and the dissent was written by Justice Alito, who was joined by Chief Justice Roberts, Justice Kennedy, and Justice Breyer. Justice Scalia approached the issue from the perspective of ancient common law property rights. He found that bringing a dog onto someone's property to conduct a test constituted a trespass at common law, which constituted a violation of the Fourth Amendment regardless of whether it also violated someone's reasonable expectation to privacy.

Continue reading "In Florida v. Jardines, the U.S. Supreme Court Finds That a Dog Sniff Can Constitute a Search" »

A West Virginia man is suing a Wayne County deputy sheriff for arresting him without sufficient reason on domestic violence charges in June 2012. Dwayne Ferguson claims that the deputy sheriff, Stafford Poff, entered his home without a warrant and proceeded to arrest him in a way that caused him substantial pain.

According to Ferguson's complaint, on June 22, Poff received a police dispatch stating that a "domestic incident not in progress" was taking place at the Ferguson residence. Poff did not obtain a warrant before arriving at the Ferguson address, where he allegedly banged on the door and demanded to be let in. When Ferguson's daughter refused to do so, Poff allegedly threatened to kick the door down, before doing so and forcing his way into the residence. Poff then found Ferguson and his wife in their bedroom, where he allegedly threw him on the bed face down and put a knee on top of him. Ferguson claims that Poff twisted his shoulder in a way that caused him severe pain.

Poff then took Ferguson to court on charges of domestic assault, domestic battery, and obstruction. Ferguson was put in Western Regional Jail, only to be released later on a $4,000 bond. When Ferguson's wife, who is mentally handicapped, failed to appear at the hearing on the charges, Ferguson's attorney successfully had the charges dismissed. Ferguson claims that Poff committed invasion of privacy, false arrest, false imprisonment, and assault and battery. He seeks damages, attorney's fees, court costs, and an order requiring deputies to obtain a warrant for crimes that they have not witnessed. There is no word as to whether Poff has also been charged in a criminal case.

Continue reading "West Virginia Man Sues Deputy Sheriff For Breaking Into His Home and Arresting Him Without a Search Warrant" »

In the past, this blog has mentioned the problems facing West Virginia's system of incarceration, both for adults and for juveniles. A study published in 2010 by the National Juvenile Defender Center found that the juvenile court system in this state suffers from "a general malaise." Public defenders were overwhelmed and failed to do proper due diligence, with the result being that juveniles served lengthy sentences for fairly minor crimes.

In 2011, the West Virginia Supreme Court responded by establishing a commission with the purpose of reviewing Division of Juvenile Service operations and programs at various juvenile facilities. The supreme court stated that it was committed to a juvenile justice system that had both effective interventions and enhanced the possibility of rehabilitation. As a result of the findings in one report and other legal actions, one juvenile facility, Industrial Home, is set to close.

Besides investigating the general conditions of Industrial Home, the commission was tasked with investigating the mysterious death of one of its juvenile residents. The resident's heart "stopped beating" at some point after dinner, when he was back in his cell. A previous coroner's report found that there was no foul play or self injury. In its March 2013 news release, the commission stated that the juvenile's cause of death could not be determined, but that it was clear that the staff had not followed proper procedures. In addition to the death, the commission investigated reports of physical assault and sexual acts between the staff and juveniles at Industrial Home.

The commission also reported the following "concerning" findings. Psychiatric services were not provided in person, but rather through a video conference. Juvenile residents were given flat sentences rather than sentences appropriate to their offenses. Their windows were covered by black paper and they were controlled by lock down. Residents were given little access to their attorneys during their period in the residential facility. Their quality of life was also quite dismal: poor quality and quantity of food, limited showers, cold cells, and thin blankets. Finally, there was no gender-specific instruction in the female residence.

Some changes were made once these problems were brought to the staff's attention. The black paper was removed and more gender-specific staff and programming were added for the female inmates. Activities to boost the juveniles' morale were added, such as intramural sports and talent shows. However, it was not enough to quell the numerous concerning issues that arose. After the commission brought the report to Governor Tomblin, Mountain State Justice filed a writ of habeas corpus petition on behalf of two of the residents. They claimed that juveniles were confined to their cells for long periods of time, that shower and bathroom breaks were at the staff's discretion, that the juveniles needed to wear prison uniforms, and that they were kept from their families. The Division of Juvenile Services finally announced that Industrial Home would close and the 300 inmates would be moved to other facilities.

Continue reading "One Juvenile Detention Center to Close After New Report Issued By West Virginia Supreme Court Commission" »

While the case at issue is not a bankruptcy case, it involves a subject that frequently leads to bankruptcy. A West Virginia couple has sued Everhome Mortgage Company, claiming that its failure to release a deed of trust is a violation of the state's civil code.

A deed of trust is not an actual deed, like a grant deed, guaranteeing ownership of the property. Rather, it is a security interest that is usually given in exchange for a loan. The most typical scenario involves an individual or couple arranging to take out a mortgage loan to buy a house, in exchange for the mortgage company receiving a security interest in the house. That way, if the home buyer defaults on loan payments, the mortgage company has the option of foreclosing on the house, in essence assuming ownership. The mortgage company then typically sells the house to a third-party buyer. If the home buyer makes his or her payments on a regular basis, this scenario should never occur. However, even when a home buyer is diligent, a mortgage company can lose paperwork, make computer errors, or otherwise be responsible for the home buyer appearing to be in default even when he or she is not.

In this case, the mortgage company's error allegedly made it appear that the couple, Donna and Robert Cramer, were in default even after they had fully paid for their home. The Cramers took out a loan to pay for their house in 1993, in the amount of $53,100, which was later taken over by Everhome Mortgage Company. The couple made their last payment in August 2012, and claim that they were assured at least three times afterward that they had paid in full. However, the mortgage company allegedly refused to release the deed of trust and demanded payment from the Cramers for amounts they did not owe at least seven times. The Cramers claim that Everhome Mortgage Company acted in violation of the West Virginia code, had breached its duty of good faith and fair dealing, and acted intentionally, willfully, and/or wantonly.

The Cramers are fortunate that they can, presumably, provide evidence that they paid off the entire loan, or at least most of it. In the case of other, less fortunate, home buyers in similar situations, they are far from being able to pay the loan off, and too often must hire a West Virginia bankruptcy attorney to help them file for bankruptcy and prevent foreclosure. They may also have the option of arranging for a loan modification, but mortgage companies have a history of repeatedly ignoring modification requests and of not dealing in good faith, which was one of the reasons behind the National Mortgage Settlement. The automatic stay in bankruptcy prevents creditors from taking foreclosure action or issuing threats from the moment the case is filed. Most filers in these situations choose a Chapter 13 bankruptcy, because that allows them to rearrange the loan payments into more manageable sums to be paid over a three-to-five year period. This is helpful to many home buyers, but they also need to be careful: if they fail to make payments and have no reasonable excuse, their bankruptcy case could be dismissed and the mortgage company would be able to foreclose once more.

In a premises liability case, federal judge Frederick Stamp sent a lawsuit back to West Virginia state court, where the defendants in the lawsuit intend to introduce evidence that the injured party participated in a 20K walk just six months after an accident allegedly gave her permanent injuries.

Back in 2009, Erica Tamburin suffered injuries after her car was allegedly hit in a Caleba's parking lot by another customer. In 2011, Tamburin filed suit against the customer and Caleba's, claiming that due to the collision, she suffered "lasting and permanent" injuries to her head, neck, back, shoulders, chest, arms, body chemistry, and psyche. She also claimed that Caleba's was partially responsible due to failure to design and maintain safe traffic flow patterns. Then, in May 2010, she allegedly took part in a 20K walk, walking the entire length in two hours and 43 minutes, placing her in the top third of the 173 participants.

Tamburin's attorney claimed that he was aware of the walk and had not yet introduced evidence of Tamburin's actual injuries. Meanwhile, the other driver's attorney claimed to be "pleased" to learn that Tamburin had resumed "normal activities."

The main reason Judge Stamp sent the case back to the lower court was that the defendants could not prove that the amount of damage suffered was more than $75,000. In order to be heard in federal court, a case must either concern a federal question (generally an issue of federal law) or (1) meet the "amount in controversy" threshold of $75,000+ and (2) diversity (plaintiff and defendant must be from different states). Since Caleba's headquarters is in Sydney, Nebraska, and the other defendant is from Pennsylvania, the diversity requirement was satisfied. Only the amount in controversy prong went unmet. With the case returning to state court, both sides will now have the chance to gather evidence from each other.

Continue reading "Defendants in West Virginia Car Accident Case Intend to Submit Evidence That Injured Party Participated in a 20K Walk Six Months After the Accident " »

A new study by the Justice Reinvestment Initiative has tips for easing the overcrowded conditions of West Virginia jails and prisons. These tips include assessing offenders once they have entered the criminal justice system and supervising them upon release. If West Virginia officials enact them, they could save as much as $340 million.

While West Virginia ranks only 32nd in the nation in putting adults behind bars, it ranks first in the growth of its prison population. Presently, the state's prisons are completely filled, forcing roughly 2,000 convicts to serve part of their sentences in regional jails that were not designed to house them.

The Justice Reinvestment Initiative has conducted similar studies of prison population growth for other states, including Texas, Ohio, and North Carolina, with very successful results. The study recommends investing $25.5 million in substance abuse and treatment programs over the next five years. That amount would include $500,000 for assistance with housing and $2 million to train probation officers and other staff. The study's authors believe that the recommendations will slow prison population growth, allowing the state to save $340 million building and operating a new prison over five years.

The Justice Reinvestment Initiative's findings have received favorable responses from many in the West Virginia legislature, which has just begun its new session. However, one member of the House of Delegates, Rick Thompson, expressed caution about taking a new approach. While he recognized the importance of tackling the prison overcrowding issue, he also stated that he would not support anything that meant putting "dangerous criminals" back on the streets. Nonetheless, he backed the Justice Reinvestment Initiative's recommendation for $25.5 million in treatment program funding, stating that he would work hard to find where to get the money to pay for the necessary facilities. In the meantime, law enforcement and emergency personnel needed more funding as well. It is difficult to imagine that Thompson is a lone voice on this matter.

We at the Wolfe Law Firm are highly in favor of measures that reduce the possibility of jail time. Any West Virginia criminal defense attorney knows that too many people have had their lives thrown away as a result of being imprisoned for drug possession. Since West Virginia has one of the highest rates of drug abuse in the nation, it is simply not feasible for every drug violation to result in jail time. If the Justice Reinvestment Initiative's recommendations are fully implemented, more people will be able to get much-needed treatment for their problems and return to normal life. No more families being torn apart due to a drug conviction. No more episodes of escalating prison violence, resulting from too many people crowded together in spaces that were not designed to accommodate them. Now, an experienced criminal defense attorney would be able to work out an agreement to have his client avoid jail time altogether and go straight to treatment. Of course any new policy should not be applied too generously -- most people would agree that suspects of dangerous crimes should not receive the opportunity to avoid jail time. However, given that most drug offenders have not committed violent crimes, there is no reason why the treatment approach would not work for them.

Recently, West Virginia became one of 46 states to take part in a settlement of a robo-signing case involving Lender Processing Services and its subsidiaries. Lender Processing Services has been accused of robo-signing mortgage documents and other improper default servicing procedures. Under the terms of the $127 million settlement, Lender Processing Services and its subsidiaries would be required to implement business practice reforms and correct any error-ridden documents it executed. It would also prohibit employees, or people without firsthand knowledge of the facts in the documents, from signing.

The events leading to the settlement began in May 2011, when California's Attorney General Kamala Harris and Illinois's Attorney General Lisa Madigan subpoenaed Lender Processing Services to investigate robo-signing claims. Later that year, Nevada's Attorney General Catherine Cortez Mastro followed suit after a Nevada grand jury indicted two employees on charges of supervising a robo-signing scheme, which led to the filing of thousands of fraudulent documents.

This case and its settlement are significant because robo-signing has played a troubling role in the country's mortgage loan crisis. After the financial crisis struck, many families found that they could not pay their loans and defaulted. Yet rather than work out an arrangement for more affordable payments, usually known as a loan modification, many lenders responded with knee-jerk efforts to foreclose upon the properties. This resulted in countless cases where lenders filed court documents that were riddled with significant errors because the lenders who signed off on them did not even check to see whether the declarations involved were accurate, or did not establish that the lenders were holders of the original note for the loan. Yet because of lenders' actions, many families lost their homes or had to file for bankruptcy to avoid losing them.

If the settlement is accepted by all, Lender Processing Services would then review documents that it executed between the dates of January 1, 2008 and December 31, 2010 to determine whether any need to be corrected. The company is setting up a hotline that consumers can call to alert them to any errors and request a correction. Lender Processing Service would also submit to increased oversight of the default services provided, and to a review to ensure that all third-party fees were reasonable.

Settlements like these are a victory for any homeowner with a mortgage. Defaulting on a home loan -- which is understandable, due to the sour economy -- should not automatically put you at risk for losing the home that you might have owned for years. You should have more options than hiring a West Virginia bankruptcy attorney and filing for Chapter 13 bankruptcy. While filing for bankruptcy would stop the foreclosure process and allow you to make more affordable payments on a three-to-five year plan, it is a big step and requires a lot of responsibility. It would be much easier for many families to simply negotiate a loan modification with the lender, with the result being that the lender still gets its money, only on terms that are easier for many cash-strapped families to meet.

Wheeling, West Virginia experienced a dramatic rise in violent crime and drug offenses last year -- and the two may be connected. In 2012, the Wheeling police department investigated 33 "forcible sex offenses," which amounted to more than twice the number in 2011. Likewise, robbery and weapons crimes had spiked compared to the previous year. The police also investigated 214 drug crimes, an increase of 45% since last year.

Wheeling Police Chief Shawn Shwertfeger believes that the rise in violent crime is related to the increase in drug abuse both in West Virginia and across the Ohio Valley. Currently, West Virginia has the highest rate of death from drug overdose in the United States. Yet police enforcement might not be enough to battle the epidemic. Already West Virginia prisons and jails are overcrowded, in part, due to people being jailed for drug crimes.

Instead, Chief Shwertfeger thinks that a more comprehensive approach needs to be taken. One is already being applied: drug treatment programs in lieu of a prison sentence. However, drug pipelines also need to be closed, and federal funding for law enforcement and public health needs to be directed toward drug abuse.

In West Virginia, the drugs most frequently used and/or manufactured include methamphetamine, marijuana, cocaine, crack, ecstasy, and pharmaceutical drugs. Crack cocaine tends to be used by low or lower-middle income people, while cocaine sources are more varied and based on the trafficker's location. Methamphetamine is frequently manufactured in West Virginia homes and has increased threefold over the past several years. Marijuana is both locally cultivated and imported, and ecstasy can be easily obtained in the area around West Virginia University. The state also has a series of pill mills where licensed doctors write prescriptions for drugs in exchange for money, regardless of whether the patient has an illness that could be treated by that drug.

The crime and drug problem are also quite likely linked to poverty -- West Virginia has one of the highest poverty rates in the nation, rising to 16.9% in 2011 compared to 15.1% across the entire country. It is clear that economic needs must be addressed as well as drug treatment needs. And as Chief Shwertfeger noted, the solution cannot always be a prison sentence. Obviously if the drug abuse is attached to a violent crime, then prison is appropriate, but not when the law breaking is solely drug related.

Continue reading "Police in Wheeling, West Virginia Report That the Number of Violent and Drug Crimes Rose in 2012" »