CHARLESTON - The Webster County prosecutor has asked the state Supreme Court to relieve him of an unreasonable burden a circuit judge placed on him regarding the disclosure of informants in a pending drug case.
Among the cases on the Court's Tuesday, Oct. 6 argument docket was State of West Virginia ex. rel. the state of West Virginia vs. the Honorable Jack Alsop, Jerry Rick Meadows, Mary Meadows, Jozet Gillion and Gerald Faulkner. Dwayne Vandevender, the Webster County prosecutor, asked the Court to prohibit him from complying with an order Alsop, a Webster Circuit judge, issued in Meadows', Gillion's and Faulkner's arraignments.
Records show all four were jointly indicted in the May term of the Webster grand jury on 24 counts of various drug charges committed between November 2008 and January. Following their arraignments later that month, Alsop set a joint trial for Aug. 18.
In addition to the names and addresses of the informants used by the Central West Virginia Drug Task Force and the West Virginia State Police's Bureau of Criminal Investigations, Alsop ordered Vandevender release the information within 20 days of receiving the defendants' discovery requests.
In his oral argument, Vandevender conceded that Alsop had the discretion to require disclosure of that information. When asked by Chief Justice Brent Benjamin why the Court should grant him extraordinary relief since Alsop had not abused his discretion, Vandevender said the 20-day window didn't give his office an opportunity to begin discussions of a possible plea agreement with the defendants' attorneys.
That provoked an immediate response from Justice Menis E. Ketchum who questioned why any competent defense attorney would want to enter a plea agreement unless he or she was able to properly scrutinize any potential prosecution witness.
"That's unfair to make them enter into any plea negotiations that you may have some drunk laying back there who can't speak a simple sentence, and they can't speak to him because they don't know who his name is, but you do," Ketchum said.
Vandevender took exception to Ketchum's statement saying that as a routine matter his office always allows defense counsel to any audio or video tapes police take of an informant's statement. Also, he said, albeit with identifying information redacted, both the defendant and his or her counsel are provided copies of an informant's criminal record which gives them an opportunity "to see if the informant may or may not be credible."
After a pregnant pause, Ketchum leaned forward and replied, "I can't tell a thug's a thug unless I look at him."
During the time to was given to address the Court, Daniel L. Grindo, Faulker's attorney, said nothing really new was happening in this case. He said the prosecution does not have to offer a plea agreement, and the defense does not have to conduct discovery.
Instead, Grindo said Alsop, within his discretion, set both a requirement and timetable for Vandevender to meet in response to the defendants' discovery requests, should they make any. If there was concern for possible retribution against the informant, Grindo said Vandevender could make a motion to keep his or her name confidential.
"The circuit court in this case certain set forth ample time that the state could have done that," Grindo said.
In his rebuttal, Vandevender said he was not asking the Court to necessarily prohibit the disclosure of the informants' names and addresses. Instead, he was seeking relief from the 20-day window Alsop imposed.
"All we're asking is that we be permitted to delay the informant, and provide the other discovery," Vandevender said.
However, Vandevender did say it's important that prosecutors have discretion in disclosing the identities of informants to defendants. In small counties like Webster where "everybody knows everybody," he said nobody would be willing to act as an informant if they know "100 percent of the time we're going to have to disclose your name."
West Virginia Supreme Court, case number 35035