Chief Justice Menis Ketchum
CHARLESTON – The West Virginia Supreme Court of Appeals on Tuesday granted a writ of prohibition by Kanawha County prosecutors against Kanawha Circuit Judge Carrie Webster.
The prosecutors argued that Webster, in excluding what they have described as “major evidence” in a 2010 murder, had “completely gutted” their case.
“The respondent erred in acting outside her legitimate powers and exceeded her legitimate authority by excluding the shell casings recovered at the scene of the crime and instructing the State of West Virginia to refrain from mentioning or eliciting testimony at trial regarding the shell casings,” Kanawha County Prosecutor Mark Plants’ office wrote in its March 30 petition with the Court.
The casings at issue — 10 mm shells — were found when police arrived at the scene of the murder, at the intersection of Park Avenue and Virginia Street in Charleston July 4, 2010.
When police arrived, the victim, Jeremy Parsons of Poca, was found shot and slumped over in the passenger side of his Cadillac Eldorado. The car then crashed into a barrier near the Sav-A-Lot store.
The defendant, David Washington Kinney, was arrested Oct. 22, 2010.
Kinney’s lawyers, in a brief in opposition to the State’s petition filed April 5, argued that Webster acted within her discretionary powers to sanction for discovery violations, pursuant to the state’s Rules of Criminal Procedure.
“The State’s discovery violations prejudiced defendant’s ability to prepare for trial, the delay resulting from the discovery violations have prejudiced defendant, and further delay of the case would have further prejudiced defendant,” the lawyers wrote.
“Accordingly, the exclusion of the shell casings was the proper remedy under Rule 16(d)(2) and within the circuit court’s legitimate discretionary powers.”
The state’s high court, in its 18-page ruling, sided with the prosecutor’s office, saying the circuit court failed to “properly analyze” the factors for sanctions against the State.
However, it noted that the State’s conduct was “troublesome.”
During their arguments before the Court last month, prosecutors admitted that their office should be held somewhat responsible for the shell casings being “lost” — or, more accurately, misplaced — at the State Police lab.
But they argued Webster’s order, which they claimed “completely gutted” their case, was not the proper sanction.
“Based upon the record before us, we do not agree that the State acted in bad faith in its dealings with the shell casings,” the Court wrote in its per curiam opinion.
“Through a series of missteps associated with the placement of the victim’s name on the file instead of respondent Kinney’s, the shell casings were not lost but were merely misfiled.”
The Court continued, “Thus, we differ with the circuit court’s finding that the Charleston Police Department and/or the Kanawha County Prosecutor’s Office’s conduct was intentional designed to thwart the legitimate discovery requests of respondent Kinney.
“Instead, we believe the conduct was unintentional, and that the State made a reasonable effort to comply with respondent Kinney’s discovery requests.”
In turn, the Court said it was forced to vacate Webster’s order suppressing the evidence.
“We conclude that in order to correct the clear legal error on the part of the respondent judge in suppressing the evidence of the shell casings as well as the ammunition, magazine and firearms seized pursuant to a search warrant, we must grant this writ of prohibition,” it wrote.
“Without this writ, the State, who has no right to appeal a criminal conviction, may otherwise be without a remedy to correct this legal error.”
This isn’t the first time Webster’s orders have come into question before the state’s high court.
Twice this year, the Court ordered the judge to issue her rulings more quickly.
In February, the Court ordered her to rule on a motion that had been pending since January 2011.
And in April, she was ordered to rule on a petition from a convicted murderer that had been pending since September 2009.