West Virginia Lawyer Blog

The Obama administration has announced that it is expanding the FBI's definition of rape, which has been in place for eight decades. Key changes include dropping a requirement that the victim must physically resist the attacker, and expanding the definition to include male victims.

The result will be that more people would be considered rape victims in the FBI statistics, but otherwise, state and federal crime laws will not change. However, rape statistics, as part of overall crime statistics, are used to determine how much money lawmakers allocate toward prevention.

The original definition of rape was "the carnal knowledge of a female, forcibly and against her will." The revised definition states that rape is "the penetration, no matter how slight, of the vagina or anus with any body part or object," without the victim's consent of the victim. In addition, the new definition states that rape is "oral penetration by a sex organ of another person" without consent. The revised definition does not specify gender, and includes the rape of someone incapable of giving consent, either because of the influence of drugs or alcohol, or because of age. The victim no longer needs to put up resistance in order for the act to qualify as rape.

Because of the changes, the number of reported rapes will likely rise, but it is unclear exactly how much. Vice President Biden claimed that the revised definition was a victory for men and women who had suffered, but who went without justice for 80 years.

It is always helpful for a West Virginia criminal defense attorney to be aware of changes in the law -- for rape or any other crime -- when defending clients charged with crimes in this state. The new legal definition, while long overdue, will obviously pose new challenges for criminal defense attorneys. Behavior once thought to be "acceptable" would now be unacceptable, and people might find themselves charged with crimes that would not have been crimes in previous years.

Continue reading "Change in Federal Definition of Rape May Change the Way Rape Crimes Are Dealt With in West Virginia, Other States" »

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.

The West Virginia Supreme Court has ordered a new trial for Rhonda Stewart, a 43-year old accused of killing her husband. Back in 2009, Ronda Stewart shot her estranged husband while he was in the intensive care unit at Charleston Area Medical Center. She claimed that she suffered from Battered Woman's Syndrome, but was nonetheless sentenced to life in prison with the possibility of parole in 15 years. The West Virginia Supreme Court's 3-2 decision reversed this conviction.

The Supreme Court's reasoning was that Rhonda Stewart was never given a fair trial. Kanawha County Circuit Judge Tod Kaufman never permitted evidence of battered women's syndrome into the trial. Had evidence been admitted, the Supreme Court stated, the jury might have reasonably found that Stewart's behavior was affected by years of abuse.

Background of the case is as follows: Stewart had been married to her husband, Sammy Stewart for 38 years (she was 16 when they married; he was 29). Husband and wife were estranged for several years, so that when Sammy was admitted to intensive care, he ordered Rhonda to leave. Rhonda later decided to go back to the hospital allegedly to commit suicide in front of her husband because "[she] wanted him to know that [she] wouldn't bother him any more." Instead, according to her testimony, Rhonda Stewart's pistol accidentally went off when she tried to wake her husband up.

One of the witnesses, a health unit coordinator for the MICU unit, testified that she heard Sammy Stewart's monitor beeping, and entered his room to find Rhonda "standing there with a gun to [his] head." Rhonda Stewart was arrested and indicted for first-degree murder. At her trial, the prosecutor claimed that Stewart intentionally and maliciously sought to kill a helpless man. Judge Kaufman then made the decision to not admit Battered Women's Syndrome evidence, stating: "There is no case law that existed in West Virginia that extends that defense to this remoteness in time." So Stewart's trial proceeded without the evidence, and Stewart has sat in jail since March of 2010.

We at the Wolfe Law Firm believe that the West Virginia Supreme Court made the right decision. While Stewart could yet be convicted of first-degree murder (her abuse allegedly took place three years before the shooting), it is important for all relevant evidence to be admitted. That Stewart was an abused spouse could be a significant factor in the jury's decision making.

Continue reading "West Virginia Supreme Court Overturns Conviction of Woman Who Killed Her Husband, Orders a New Trial" »

On June 22, 2011, the West Virginia Supreme Court released its opinion in the State of West Virginia versus David Wayne Kaufman, an appeal from the Circuit Court of Wood County. This case was a confrontation clause case under the Sixth Amendment of the United States Constitution. In the State vs. Kaufman, the West Virginia Supreme Court issued an opinion with ten syllable points. What is clear is that the West Virginia Supreme Court continued support of the defendant's right of confrontation under the Sixth Amendment.

The West Virginia Supreme Court found that any admission of extrajudicial testimony under the confrontation clause is not admissible unless they can: 1) demonstrate the unavailability of the witness and 2) prove the reliability of the witness' out-of-court statement. On the question of whether or not the reliability of an out-of-court statement deals with the exceptions to hearsay, the West Virginia Supreme Court found that you do not have to make an inquiry as to the reliability statement where it falls into a firmly routed hearsay exception. Now this decision is a continuation to follow up Crawford vs Washington, wherein, the United States Supreme Court said that the Sixth Amendment of the United States Constitution and also the West Virginia Constitution, which would be Section 14, Article 3, bars the admission of testimonial witness where the person is not to appear at trial.

Crawford also was supported by the decision of State vs. Mechling, where they said a testimonial statement of a witness who does not appear at trial does not come in unless the witness is unavailable and Mchugh's had a prior opportunity to cross-examine that witness. Now after Crawford, there was a lot of discussion and opinions around the country as what is testimonial. Now the West Virginia Supreme Court in State vs Kaufman said that a testimonial statement is generally a statement that is made under circumstances which would lead an objective witness to reasonably believe that the statement would be available for use later at trial. This language was taken from syllabus 8 of State vs Mechling.

Continue reading "West Virginia Supreme Court in State vs. Kaufman Continues to Support the Confrontation Clause and Questions Admissibility of Out of Court Statements being Admitted at Trial" »

Insurance companies, out-of-state interest and the US Chamber of Commerce have ridiculed the West Virginia judicial system non-stop. This is in a concerted effort to eliminate the citizens of West Virginia access to our court system. If a everyday person cannot have access to the Court we all lose a significant constitutional right. One that our founders fought for and was one of the reasons we started this Country. You may ask how is that happening? First, most people cannot afford an attorney. If they are injured in an accident and the other party is at fault, people can no longer settled their claim. The insurance companies do not fairly evaluate claims causing people to have to hire an attorney and often file suit.

Most people do not want to file suit and at first feel the insurance company will properly handle their claim. A person who handles his or her own claims is trusting the very persons whose job it is to not pay your claim or to pay you as little as possible. This is a clear conflict of interest.

Next, our governor and legislature took away the third party bad faith law which used to monitor the claims process. Now insurance company have no rules and can treat citizen with claims however they please.

For insurance company's the name of the game is to delay and make the process as expensive as possible. In this system the only person who can afford to go to court has the ability to use the court system. This is the insurance company or a corporation. The request for an intermediate court is along the same lines of thinking. Remember if you are an insurance company, you want to delay the case and constantly defend. What better way to continue to delay than to put in place another layer of bureaucracy.

Continue reading "Intermediate Court of Appeals is it Good for West Virginians?" »

The United States Supreme Court in Bullcoming vs. New Mexico which was decided on June 23, 2011, found that a person charged with a crime and placed on trial has the right to confront the witnesses against them. If you are charged with a crime, one of the rights you have, is to confront those in Court who have alleged that you have violated the law. The right of a person to have their attorney cross-examine witnesses is a fundamental right under the Sixth Amendment. The West Virginia State Supreme Court through its rulings has likewise supported a lawyers right to be able to cross-examine the witness' first hand.

The Supreme Court in Bullcoming, in this decision again supported its prior ruling in decision of Crawford vs. Washington, 541 U.S. 36. In Bullcoming, the State introduced a forensic laboratory report certifying the blood-alcohol concentration being above the legal limit into the trial. The problem was this evidence was not introduced through the forensic analyst who did the testing, but through another witness. The State claimed that the analyst was on leave and was therefore unavailable to testify.

The testimony was a clear violation of the confrontation clause because you cannot cross-examine a document when the witness who did the testing does not testify at trial, therefore the reliability of the testing and whether the standards were followed could not be examined. The Defendant could not confront the witness who offered evidence which is a clear violation of a persons right to confrontation. Several years ago, a State crime lab got so backed up that they were not testing evidence to see if it was indeed a controlled substance. They just look at the alleged drugs confirmed that it was the drug they were suppose to test for claiming it was tested, weighed it and certified it as an illegal substance. When this happens, innocent persons can be jailed when they are not allowed to question the evidence.

After the Crawford decision by the United States Supreme Court, other Courts have attempted to place exceptions or limitations on what type of testimony is inadmissible under Crawford. The United States Supreme Courts in Bullcoming discourage this approach. Clearly stated that out-of-court statements that are testimonial in nature are not to be introduced. The Court said that you cannot evade the confrontation clause by using a note-taking police officer and that reliability of the hearsay does not make it admissible.

What occurs is, the police officer would take the stand and testify as to what his investigation was and what the witnesses he interviewed told him in their statements. The Defendant could not question these witnesses directly because they did not testify. Counsel for the Defendant would object to this evidence as hearsay and lack of ability to confront the witness. Judges would allow the testimony and save it was part of his report or part of his investigation. The Supreme Court in Crawford and now in Bullcoming are attempting to put a stop to these types of procedures.

The Court systems throughout the United States make a concerted effort to aid the State and the police in the prosecution of cases. One of the ways this is done, is to allow hearsay and prior testimonial statements into the trial. The founders of our constitution remembered a time persons were jailed and sometimes executed based upon what someone told someone else without the ability to test the truth of these statements. The United States Constitution and our Sixth Amendment were written by our founders for this reason. Sir Walter Raleigh was tried for treason, the evidence against him was statements written by witnesses, which were read during his trial. He had no right to confront his accusers and he paid with his life. The United States Supreme Court is attempting to uphold what the Courts consistently have attempted to take away, your Sixth Amendment right of confrontation.

The Supreme Court of the United States in a decision of March 31, 2010, in the Padilla vs. Kentucky, found that an attorney must inform his client whether his plea carries the risk of deportation. In the Padilla case, failure of a lawyer to advise his client that with a conviction he could face deportation is something that his defense lawyer should have discussed with him. It is important that if you are charged in Federal Court that Counsel provide answers to all questions.

Failure of a defense attorney to properly advise his client of the potential penalties is essential for effective assistance of competent counsel. The main Supreme Court case on effectiveness of counsel is Strickland vs Washington 466 US 668. The Sixth Amendment of the United States Constitution, provides a person charged with a crime has the right to have effective assistance of counsel. In Padilla, the U.S. Supreme Court found that deportation is a particularly servile penalty that is intimately related to the criminal process and, as such, counsel should have advised their client of the risk of deportation.

Also, in the Padilla case, the Supreme Court looked to the ABA standards concerning pleas of guilty and the NLADA (National Legal Aid & Defender Association) Guidelines for defense lawyers in providing guidance as to what standards effective assistance of counsel. In any case, the Sixth Amendment requires that persons charged with a crime have an affirmative, competent attorney that can provide advice regarding all issues, including those regarding immigration consequences

Continue reading "Convicted of a Crime - Can Padilla vs. Kentucky be expanded to find defense attorneys ineffective?" »