Mingo judge both ‘judge and jury’?
by Ron Gregory
CHARLESTON — An emergency petition will ask the state supreme court of appeals to find that Mingo County’s circuit judge has overstepped her authority. It accuses her of acting as “judge and prosecutor” in a home confinement case.
In an usual twist, an emergency writ of prohibition is being sought against Judge Miki Thompson by the Williamson public defender office while Prosecutor Jonathan “Duke” Jewell apparently agrees with the defense. Normally, a Charleston attorney said, the public defender office and prosecutors are on opposite sides in litigation.
“Just by virtue of their titles, one is for prosecution and the other is for the defense,” the veteran lawyer said. “It is not at all normal to see a prosecutor siding with the defense and, clearly according to this petition, against the presiding judge.”
Mingo is not, of course, a general model for judicial consistency. Thompson, in fact, succeeded former Judge Michael Thornsbury, who is still in jail on federal corruption charges. The attorney who filed the present case said he could not find where such a matter had ever occurred before.
The petition claims Thompson violated the rights of Brandon White. It indicates it is being filed by Public Defender William Duty of the 13th Judicial circuit in Williamson.
The motion says Thompson is being named in her official capacity as circuit judge. The issue raised is whether a circuit judge has “legitimate powers” to set a hearing and remand a convicted individual to jail for home confinement violations when the prosecutor indicates he will not provide any evidence in support of this action.
Repeated telephone calls to Jewell were not answered or returned last week, apparently continuing another Mingo County tradition of prosecutors not responding to media inquiries.
The petition says that on “August 22, 2016, Petitioner (White) plead (sic) guilty to Attempt in violation of West Virginia Code 61-11-8(2).” Thompson entered a sentence of 12 months of electronic home confinement, with White receiving credit for 77 days that he had already served on electronic monitoring. That meant, according to Duty’s motion, that White’s sentence would conclude on or about June 5 of this year.
“On or about May 31, 2017, the Mingo County Home Confinement Office told (Whte) to report to the home confinement office because he was being revoked by an order issued by (Thompson) for allegedly being ‘out of range’ on Friday, May 26, 2017, for a total of 19 minutes,” the petition says.
A hearing on the revocation was set for 2 p.m., May 31. At that hearing, the petition maintains, Jewell “stated he never filed a petition nor moved the court to revoke (White’s) home confinement. In fact, he (the prosecutor) explicitly stated that it was not his intention to … sign any document that represented that his office intended to revoke (White). Further, during this hearing, the chief prosecutor explicitly stated that he would not put on any evidence nor call any witnesses.”
Despite knowing that the state, through Jewell, was not seeking to revoke White’s home confinement nor did it intend to produce any witnesses or evidence supporting the revocation, Thompson remanded White to the Southwest Regional Jail.
Thompson, the petition says, “advised all parties that she would hold the preliminary hearing, again, on Friday, June 2, 2017, where again, the chief prosecutor advised the court that he would not file any petition nor put on any evidence at said hearing.”
After the defense asked Thompson what evidence she was relying on to support the revocation, the petition says she “recessed for about 30 minutes and resumed the hearing.” Then, “(Thompson) stated that she found probable cause to remand (White) to” the jail again.
Duty’s motion says a writ of prohibition is appropriate “because the circuit court abused its legitimate powers during a preliminary hearing for a home confinement violation and (White) has no other remedy and is currently in jail.”
The petition goes on to say the plaintiff believes oral arguments before the court would be appropriate because “this matter involves an unsustainable exercise in discretion of settled law.”
The petition argues that Thompson “exceeded her legitimate powers” and White has no recourse but the supreme court. It says a writ of prohibition is appropriate since the judge is exercising an “inappropriate deprivation of (White’s) liberty without any support in law.” It maintains that, even if White successfully appeals Thompson’s decision, he will have served time in prison without any possibility of getting it back.
All prosecutorial power in Mingo, the petition maintains, rests with the elected prosecutor. The motion goes on to say that Thompson “certainly cannot serve as both judge and prosecutor. Furthermore, the state explicitly said it would not call any witnesses, adduce any evidence, or otherwise attempt to show probable cause during this, or any future, preliminary hearing.”
Duty says Thompson’s remand of White to the regional jail “is an egregious mistake of law that (the supreme court) should remedy with an emergency writ of prohibition.”
The public defender concludes that his research finds no similar situation ever in West Virginia, calling it an “issue of first impression. Although clearly wrong, (White) can find no precedent for (Thompson’s) actions.”
The motion asks the court to stay the proceedings in Thompson’s court and order the immediate release of White.