West Virginia Lawyer Blog

Recently, five people were arrested in Charleston after police discovered a methamphetamine laboratory in a private home. The police investigated the home at 9:30 pm in the evening after receiving an anonymous tip. Although the homeowner, Shane Thaxton, told police that there were no illegal substances in the house, he gave written consent for the police to investigate. The search of the home and the surrounding buildings allegedly unearthed a methamphetamine laboratory. The laboratory contained ingredients such as residue, rubber gloves, coffee filters, and some small plastic bags containing an unknown white powder. Police ended up arresting Thaxton and four other adults living in the house, their ages ranging from mid-20s to their 30s. All were later taken to prison, where their bail was set at $25,000 apiece.

Addiction to methamphetamines is a problem that is nationwide. Methamphetamine is a crystallized powder referred to by various names, including "crystal meth," "meth," or "crank." People take "meth" for a variety of reasons -- for greater energy, self-esteem, and euphoria. However, meth use can also lead to a greater likelihood of anxiety, depression, and decreased appetite.

Meth is a big problem in West Virginia, both in terms of use and production. Most meth available in West Virginia is produced locally, with whatever is left over is shipped to border states or Mexico. Meth levels are reported to be higher in the western end of the state than the eastern end. Meth is frequently produced in home laboratories, where it can be done cheaply and privately. A telltale sign that meth is being produced in a private home is a noxious chemical odor emanating from it. Those who are caught producing or taking meth will be subject to strict federal drug laws. In that case, they would need a West Virginia criminal defense attorney to defend them and try to reduce their charges.

Many people who use and produce methamphetamines do so for reasons that are complicated and are not always generally understood. Nonetheless, even people guilty of a criminal act need an attorney to represent them. A criminal attorney can investigate whether police used all legal procedures to obtain evidence. For instance, in this case, the homeowner gave written consent for the police to enter and search. Assuming that the written consent was not forced, that is a valid way for police to search a home without a warrant. However, often permission to enter is not so clear cut. Ideally, police should have a warrant that states specifically what they must search for, and they must not go outside the bounds of the warrant. In reality, police may enter and search a residence without a warrant, which violates the homeowners' Fourth Amendment rights. Even if police had a search warrant, it may be too vaguely worded, or the police might ignore its scope and search throughout the house when they should limit their search to the downstairs rooms. An experienced attorney would investigate this and argue that the evidence obtained in these searches was illegal and should not be admitted in court. We at the Wolfe Law Firm have years of experience with criminal defense. If you need an attorney to represent you in a criminal proceeding, give us a call.

Circuit Judge Alan Moats has asked West Virginia lawmakers to review the state's definition of child abuse and neglect to include parents who keep their (otherwise healthy) children home from school on a regular basis.

Although Judge Moats does not think that children kept out of school are in physical danger, he believes that they are still harmed by the experience because their parents are denying them a constitutional right to an education. At present, West Virginia Code Chapter 49 states that abuse and neglect consist of harm, or threatened harm, to a child's welfare or health. This is done by a physical, mental, or emotional injury, such as corporal punishment or sexual abuse. The Code does not permit any leeway that would let it apply to non-health-related crimes -- any prosecutor bringing a case of child neglect must prove harm to the child's health.

Yet Judge Moats believes that keeping a healthy child out of school has long-term costs: truancy can be passed down in families, from generation to generation. Many child truants end up dropping out of school altogether -- 34,547 people over the past decade. While Judge Moats acknowledges that other problems such as depression, bullying, or drug abuse could be the reason, he also thinks that parental habits are a problem. Parents won't or can't take the children to school. Sometimes children have to be the "adults" of the household and take care of younger siblings while the parents are ill. Several parents have gone to great lengths to keep this arrangement in place, including finding doctors willing to sign a sick note for their children regardless of their health.

Children who frequently miss school are also more likely to get involved with illegal drug use and other crimes. Their teachers face the strain of having to teach class work all over again if the children ever do return to school. Judge Moats hopes that if educational neglect is added to the state Code, it will have a positive effect.

The child negligence here is very different from the kind we at the Wolfe Law Firm typically deal with. Child injury is usually physical, in the form of physical abuse or accidents caused by malfunctioning products or outside parties (such as car accidents). When one discovers that a child has been physically abused, it is possible to go out and hire a West Virginia child injury attorney to represent the child against the one responsible for the abuse. Similarly, when a child is injured as the result of an outsider's negligence, an experienced attorney could represent the child against the one who caused the harm. However, Judge Moats brings up an interesting difficulty: what happens when the "neglectful" behavior is a cultural norm? Many probably think that a child staying home to care for the family, for instance, is perfectly acceptable and not abuse at all. Other times children might stay home to help parents with very arduous labor. It may be hard to convince some West Virginians that this norm may harm the child in the long run. Hopefully Judge Moats's efforts will yield the right results.

In State v. Wall, the West Virginia Supreme Court of Appeals recently affirmed a lengthy sentence given to a petitioner convicted of sexual abuse. The decision is a reminder that in West Virginia, "[t]here is no absolute right . . . to plea bargain."

Edward William Wall originally pleaded guilty to charges of sexual abuse and was convicted. He served 16 months of his sentence before being released on probation. Less than four months later, a petition of revocation was filed, and Wall pled guilty. After his sentence was reinstated and then suspended, he was allowed to resume probation. Less than a year later, Wall's probation was revoked once again. Wall tried to convince the court to transfer his probation to Ohio, where he could live with his parents. Judge Knight, a temporary appointee sitting in the place of a recently retired judge, ordered the probation office to check if Wall could live with his parents. At the same time, Judge Knight reinstated Wall's original sentence of 10 to 20 years. After Wall tried and failed to have his request reconsidered by another judge, he filed an appeal with the West Virginia Supreme Court of Appeals.

Wall argued on appeal that Judge Knight would have allowed him to reinstate probation if his transfer to Ohio were approved. Because of this, Judge Knight's oral announcement of sentence was enforceable like a contract. Failure to honor the plea agreement to have Wall's probation reinstated was the same as a contract breach. The State responded that there was no agreement -- or if there was, it was non-binding since it was issued by a temporary judge.

The West Virginia Supreme Court of Appeals agreed, and went further by noting that "a circuit court does not have to accept every constitutionally valid guilty plea merely because a defendant wishes so to plead." The Supreme Court of Appeals emphasized that Rule 11 of the West Virginia Rules of Criminal Procedure defines a plea agreement as something between a West Virginia criminal defense attorney and the prosecutor, with no involvement from the judge. There was no evidence that discussions between Judge Knight and Wall's defense attorney represented a plea agreement, as Judge Knight made no promises that he would sentence Wall to probation in Ohio. Overall, the Supreme Court of Appeals found that the lower court did not abuse its discretion by revoking Wall's probation and by reinstating Wall's original sentence of 10 to 20 years.

We at the Wolfe Law Firm have represented many criminal suspects and are very familiar with plea bargaining. In fact, most criminal cases nationwide are settled by plea bargaining rather than by a trial. An experienced criminal defense attorney would know how to work out an agreement with the prosecutor to reduce his or her client's possible sentence. While a defense attorney may believe that his or her client is innocent, in reality it may be a difficult case to prove. A successful plea bargain could allow a client to serve a less burdensome sentence and take the next step in life.

An Ohio County Prosecutor will not be involved in a case against a Wheeling police officer due to a conflict of interest. The reasons given for not having Prosecutor Scott Smith involved in Officer Matthew Kotson's case -- in which Kotson has been accused of sexually assaulting two women -- is because Smith's office has long had a close working relationship with the Wheeling police department.

Kotson is accused of assaulting two women during different times. One woman later visited the Wheeling police department on Thanksgiving Day with the charge that Kotson had assaulted her that morning. Kotson allegedly went to her home and began making unsolicited sexual advances, which did not stop despite the woman's pleas. Kotson allegedly followed the woman into her bathroom and pushed her against the wall before sexually assaulting her. Later, while not admitting to sexual assault, Kotson allegedly admitted that he visited the woman's house and touched her in a sexual manner.

Statements by other women conformed to Kotson's accuser's claims. Each women with a prior relationship with Kotson alleged that he made aggressive sexual advances on multiple occasions. One even claimed that Kotson held her down and forced her to take part in nonconsensual sex three separate times. Kotson has been put on unpaid leave, and the police department is looking into disciplinary action. Meanwhile, the Ohio County Magistrate arraigned Kotson on four counts of second-degree sexual assault. Kotson was able to post a $40,000 bond to secure his release.

Prosecutor Smith does not know whom the West Virginia Prosecuting Attorneys institute will try to get in his place, but they normally try to find prosecutors in a neighboring county. Smith noted that the process is common, and that Ohio County prosecutors handle several other matters that originated in other counties. Besides a special prosecutor, a magistrate is also expected to work on Kotson's case.

The Wolfe Law Firm supports the West Virginia Prosecuting Attorneys' actions. Integrity in any criminal case is important, especially when a person's freedom (or even his or her life) is at stake. Even though one would think that a West Virginia criminal defense lawyer would like to see the prosecutor be lenient on the criminal suspect, it shouldn't be under suspicious circumstances, such as if the prosecutor were a close friend or colleague of the suspect. In order for the criminal justice system to function, people need to believe that it works. That means the evidence was gathered without police violating Constitutional protections. It also means police officers can be held properly accountable for their unlawful actions, whether during the course of employment or in private. And it means that all conflicts of interest are discovered and removed before the case gets underway.

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