CHARLESTON – Braxton County Magistrate Carolyn Cruickshanks cannot adequately defend herself against a criminal charge while suspended without pay, her attorney told the West Virginia Supreme Court of Appeals.
"We need the money to be able to mount a defense," James Douglas of Sutton told the Justices at oral arguments May 9.
Douglas did not challenge a decision of the Justices to suspend Cruickshanks, but he said she should continue to receive her pay. He said he hated to think she would be convicted because she could not afford a defense.
State Police in February charged Cruickshanks with conspiracy to intimidate a witness. The felony charge carries a sentence of one year to five and a fine up to $10,000.
According to police, on Feb. 7 Cruickshanks delivered an envelope to her son, Jordan Grubb, an inmate at Central Regional Jail in Flatwoods.
According to police, the envelope contained a statement of inmate Philip Dailey, who had agreed to testify against Grubb on a drug delivery charge.
According to police, Cruickshanks and Grubb had arranged the delivery in a telephone conversation that jail personnel recorded.
In March, the Justices suspended her without pay.
At oral argument, Douglas said loss of pay hampered her defense and denied her a presumption of innocence. He said she was bound over but not indicted. He said police counted her silence on the phone as evidence of conspiracy.
"We are contesting it from top to bottom," Douglas said.
Justice Brent Benjamin asked if she carried documents. Douglas said she did, but the envelope was sealed.
Benjamin asked if she said she did not know what was in the envelope. Douglas said Grubb's attorney sent the envelope.
Benjamin asked if the documents put a witness at risk. Douglas said no one proved that.
Douglas said she gave the envelope to jail personnel. He said jail personnel opened it and scrutinized it.
"The documents themselves never surfaced so no one knows what they are," he said.
Benjamin asked if Cruickshanks said, "That's what he gets." Douglas said yes.
"It may be stupid, but it is not conspiracy," Douglas said.
Justice Spike Maynard said a prosecutor would say that carrying documents was an act of conspiracy.
Douglas said the executive director of the jail saw the documents.
Maynard said that didn't change the fact that she carried them.
"For us to be able to litigate that, we have to have money," Douglas said.
"For all she knew, she could have been delivering drugs?" Maynard said.
"Or gingerbread cookies," Douglas said.
Skip Garten, West Virginia judicial disciplinary counsel, asked the Justices to stick to their decision to suspend without pay.
He cited six Court decisions as precedents for suspending without pay when criminal charges are alleged.
"Now you've got me scared," Maynard said, asking if speeding tickets would count.
"I'm not saying any criminal charge," Garten said, adding that the least severe offense in a suspension without pay was battery.
In rebuttal, Douglas said the integrity of the judicial system depended on fairness.
"You've got a pretty good shot at getting her acquitted," Maynard said.