by Ron Gregory
Although I said my memory was fuzzy on my experience with trials in Clay County some 36 years ago, I did not expect to reference the wrong one entirely in last week’s comments. I was on the subject of who could appear before a grand jury and had in hand a Supreme Court conclusion that anyone in West Virginia is free to present evidence for an indictment to a grand jury.
While the conclusion of my ramblings were correct, my remembrances of the trial that led to the supreme court decision were not. I should have known that from the style of the case, Clarence Thomas Miller v. Hunter Paul Smith, Jr. I knew that Smith was then-Clay County Prosecutor Hunter Smith.
What I failed to remember was that there were two extremely high profile court cases during my tenure at the Clay Messenger and, later, The Elk Examiner. Both cases involved Smith as well as Sutton-Clay attorney James Wilson Douglas. That may be part of what led to my confusion, but after reading the Supreme Court’s entire decision in the case, I know I had the wrong one.
Last time, I recalled a Pierson Lumber Company case in which a Karnes was accused of a crime with regard to a fire that destroyed some Ming Dynasty porcelain. The Piersons, arguably the richest family in Clay County, had little confidence in new Prosecutor Smith’s ability to present the case. They hired Douglas and he eventually was appointed as a Special Prosecutor in the case. Thus, Smith and Douglas did sit side-by-side at the prosecution table in the Karnes trial.
But the case at the root of the Supreme Court ruling that anyone is allowed to present evidence to a grand jury is a completely different matter. My mind is clearer since I actually read the ruling by the court in 285 Southeast 2nd 500. It came in 1981.
Parties in the case at hand were the State of West Virginia ex rel. Clarence Thomas Miller v. Smith.
As he had the Piersons, Douglas represented Miller and the state in a hearing before the top court. Then-Attorney General Chauncey Browning and Assistant Thomas N. Trent represented Smith. The ruling came on December 18, 1981.
What was actually filed was a writ of prohibition “seeking to restrain the respondent, the Prosecuting Attorney of Clay County, from attempting to dissuade or discourage the grand jury from hearing the petitioner (Miller) or any evidence he might have regarding a complaint which he seeks to lay before it. The petitioner contends that the use of persuasion by the prosecuting attorney to influence the decision of the grand jury whether or not to entertain the petitioner is an exercise of power beyond his jurisdiction. We find merit in this contention and grant a molded writ.”
The court goes on to write, “The petitioner claims he was the victim of a malicious wounding perpetuated by two policemen on October 17, 1980. The petitioner prosecuted two criminal warrants against the accused perpetrators of the deed, which were dismissed by C. Velt King, a Clay County Magistrate. Subsequently, the petitioner submitted his evidence of the incident to the prosecuting attorney. According to the prosecuting attorney, his investigation of the incident revealed that late in 1980 the petitioner was stopped by a city patrolman and a deputy sheriff for driving under the influence. The prosecuting attorney contends, that when stopped by the officers, the petitioner resisted arrest, crawled under his car, kicked at the arresting officer and would not come out from under the car. The State admits in its brief that the incident which the petitioner describes as a malicious wounding occurred when the officers used chemical mace on the petitioner. Based upon the results of his investigation, the prosecuting attorney determined not to present the matter before the grand jury attending the March 1981 term of the Circuit Court of Clay County.”
The court ruling continues, “Notwithstanding this decision, the petitioner advised the prosecuting attorney that he would be present on the day the grand jury was scheduled to convene, in order to petition the foreman for permission to appear and to submit evidence of the alleged offense. The respondent replied that he would invoke the powers of his office as prosecuting attorney to instruct the Sheriff of Clay County to prevent the petitioner from so petitioning the foreman of the grand jury, or from appearing before that, or any future, grand jury for the purpose of presenting evidence regarding this particular complaint.
“Undaunted by the prosecuting attorney’s warning, the petitioner and a corroborating witness appeared at the Clay County Courthouse on the day the grand jury was to meet. At that time the issue of his appearance before the grand jury was referred to the Honorable Albert L. Sommerville, Jr., Chief Judge of the Fourteenth Judicial Circuit. However, upon being made aware of the facts and issues involved, Judge Sommerville declined to intervene.
“Although maintaining his earlier position, the respondent advised the petitioner that he would inform the grand jury that the petitioner was present and wished to appear before them to submit evidence of an alleged criminal offense. The prosecuting attorney, however, further advised the petitioner that he would also attempt to discourage and dissuade the grand jury from entertaining the petitioner or from hearing any evidence he might have to offer regarding his complaint. Following the respondent’s presentation, the grand jury deliberated and voted not to hear evidence from the petitioner.”
Feeling he had been railroaded, perhaps, Miller then sought the subject Writ of Prohibition alleging that Smith’s actions constituted an exercise of power beyond his jurisdiction.
The court then set out the issues before it. They said they were: “(1) does a person have a lawful right to personally complain of a criminal offense to a grand jury, over the objection of the prosecuting attorney; (2) may a prosecuting attorney render unsworn testimony before a grand jury; and (3) does prohibition lie against a prosecuting attorney who attempts to stop a grand jury from hearing independent evidence.”
The court then gave a lengthy overview as to how the grand jury system of justice came to be in America.
Then they add, “Our state constitution guarantees that “[t]he courts of this State shall be open, and every person, for an injury done to him, in his person, property or reputation, shall have remedy by due course of law; and justice shall be administered without sale, denial or delay.” :
It adds, “The citizen who alleges that his rights have been criminally invaded is entitled to seek redress through the courts and is so entitled as a matter of constitutional right. Thus, the circuit court must guarantee that the grand jury is open to individual citizens seeking to redress wrongs by laying a complaint before it.
“To fulfill its functions of protecting individual citizens and providing them with a forum for bringing complaints within the criminal justice system, the grand jury must be open to the public for the independent presentation of evidence before it. If the grand jury is available only to the prosecuting attorney and all complaints must pass through him, the grand jury can justifiably be described as a prosecutorial tool.”
On the second issue, the court writes, “The petitioner contends that in the course of the prosecuting attorney’s attempt to dissuade the grand jury from hearing the petitioner’s evidence, the prosecutor improperly rendered unsworn testimony relating to the circumstances surrounding the incident giving rise to the petitioner’s complaint. We agree with the petitioner that such a course of action on the part of a prosecutor is clearly improper. It has long been established in West Virginia that the discussion of evidence before the grand jury, relating to an alleged crime the grand jury is then considering, by persons not sworn to testify as witnesses, will vitiate an indictment returned by the grand jury, whether they were actually influenced by such discussion or not. This rule applies equally to the prosecuting attorney as it does to any other witness not sworn to testify. A prosecuting attorney can only appear before the grand jury to present by sworn witnesses evidence of alleged criminal offenses, and to render court supervised instructions; he is not permitted to influence the grand jury in reaching a decision, nor can he provide unsworn testimonial evidence.”
The court ruled that they were unable to render an opinion as to Smith presenting unsworn testimony to the grand jury. They noted that Smith denied the allegation. “Nevertheless, we wish to emphasize that any attempt by a prosecuting attorney to render unsworn testimony before a grand jury cannot be tolerated. Such unsworn testimony, particularly on the part of a prosecuting attorney, seriously threatens the integrity of the grand jury’s judicial function and constitutes an ethical violation of standards of acceptable prosecutorial behavior.”
The third question was whether a Writ of Prohibition was proper in this case. “Prosecuting attorneys are executive officers, and in the performance of their executive duties they are not subject to the judicial writ of prohibition. The petitioner, however, has not requested this Court to prohibit the executive actions of a prosecuting attorney. Rather the petitioner seeks to prohibit the Prosecuting Attorney of Clay County from usurping the jurisdiction of a judicial tribunal, the grand jury,”the court writes in this regard.
“By attempting to influence the grand jury the respondent usurps both the power of the circuit court, and of the grand jury itself. The grand jury is an integral part of the judicial system and enjoys a special relationship with the court by which it is convened. Because of this special relationship the court has a particular responsibility to insure the fairness of grand jury proceedings. When the prosecuting attorney attempts to influence the grand jury not to hear evidence which a citizen wishes to present, he improperly infringes the supervisory function of the circuit court.
“Under West Virginia law, once a grand jury is properly selected, the judge appoints a foreman. After that appointment, the grand jury has an independent existence proscribed only by the court’s limited supervisory powers, the grand juror’s oath, and the applicable rules of criminal procedure. Once their oath is administered, the grand jurors become officers of the court with the duty to ‘diligently inquire and true presentment make of all such matters as may be given you in charge or come to your knowledge ….’ By attempting to dissuade the grand jury from hearing evidence the prosecuting attorney further usurps the judicial powers of the grand jury itself.
“The role of the prosecuting attorney in relation to the grand jury is strictly circumscribed. The prosecutor’s responsibility is to attend to the criminal business of the State, and when he has information of the violation of any penal law, to present evidence of those offenses to the grand jury. Thus, the jurisdiction of the prosecuting attorney encompasses only the presentation of evidence. If instructions on law or the legal effect of evidence are in order, those instructions must come from the circuit court. Any advice to the grand jury by the prosecutor is subject to court supervision. An attempt by the prosecuting attorney to discourage or dissuade the grand jury from hearing evidence is therefore outside his jurisdiction, and could rise to the level of obstruction of justice.
“Accordingly, we hold that a prosecuting attorney who attempts to influence the grand jury by means other than the presentation of evidence or the giving of court supervised instructions, exceeds his lawful jurisdiction and usurps the judicial power of the circuit court and of the grand jury. Consequently, prohibition will lie to prevent such usurpation of judicial power.”
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The ruling appears quite clear. I would say, however, that sometime in the past 35 years, at least one Prosecutor has tried to influence a grand jury’s decision-making process.
We are on this subject, as I explained earlier, because dozens of readers keep asking if the Dawson Isom attack case can be presented to a grand jury without the assistance of a prosecutor. Obviously, under this ruling we just discussed, it can. Former Mingo Prosecutor Teresa Maynard was not about to present the real case to a grand jury and one might guess was influential in their decision-making process. Nobody else has stepped forward demanding to present the evidence.
As I said earlier, there are many logical reasons why one would not present such a case. The most glaring is what the overall effect would be if the jury refused to issue an indictment after seeing and hearing all the evidence. That might not help the Isom civil case against Erik and Gary Rash.
So, legal technicalities and the nuances of the case may well determine when this case could be brought before a grand jury. But at least now we know, every citizen has a right to appear before that body and seek an indictment.
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Leave it to the geniuses running the Bill Cole campaign to decide another brilliant tactic is trying to tie Democrat Jim Justice to Hillary Clinton.
If any major party gubernatorial nominee ever scrambled to get away from his presidential nominee harder than Justice, it would likely have been whoever the Republicans ran for governor in Herbert Hoover’s re-election year. Justice has made it clear he is not for Clinton. Yet, the GOP insists he is. He even said he voted for John McCain and Mitt Romney in years past. Guilt by association is often a good tactic, but not here.
Voters no there is no evidence to link Justice to Clinton.
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Your comments, story ideas, rumors, gossip or sightings of Clinton yard signs on the Greenbrier property are welcome. Use my email listed or call my cell, 304-533-5185.