CHARLESTON – The state Supreme Court has rejected a last-minute attempt by a former Randolph County school teacher to have charges she sexually abused one of her students dismissed.
The Court on Sept. 4, without comment, unanimously denied a writ of prohibition Autumn Rae Faulkner brought against Randolph Circuit Judge Jaymie Godwin Wilfong. In her writ filed Aug. 22, Faulkner, 29, asked an indictment returned against her in February for allegedly having sex with an Elkins Middle School student nearly four years ago be dismissed on the grounds the special prosecutor appointed in the case was powerless to bring it.
According to court records, the Randolph grand jury on Feb. 27 returned a six-count indictment against Faulkner charging her with three counts each of Sexual Abuse by a Parent, Guardian, Custodian or Person in Position of Trust, and Sexual Abuse in the Third Degree.
The indictment alleges Faulkner, while a social studies teacher at EMS, had sex on multiple occasions with a then-15-year-old student identified by his initials C.B.S. between December 2008 and February 2009.
Faulkner was initially indicted on the charges in February 2011. However, Wilfong dismissed it following an unsolicited comment made by a juror.
After she was re-indicted the next month, Wilfong dismissed it, too, on June 30, 2011 after finding then-Prosecutor Richard Busch in contempt for lying about being in possession of video tape containing the interview between the boy and Trooper A.V. Loudin. After Busch withdrew from the case citing the possibility of Faulkner calling him and his staff as potential witnesses, Wilfong on Sept. 6, 2011 appointed Elkins attorney Steve Jory as a special prosecutor.
In the writ, Faulkner's attorney Rocco E. Mazzei said Wilfong's appointment of Jory was improper. In addition to not holding a hearing on Busch's motion to recuse himself from the case, Mazzei said Wilfong erred in not drafting a "narrowly drawn" order stating the reasons for Jory's appointment.
"Here," Mazzei said, "a motion was filed by the prosecuting attorney regarding [Faulkner's] case. No notice was given to the [her] of any hearing on this motion."
"Further," he added, "no order was entered appointing a special prosecutor with the required findings/reasons set forth in West Virginia Code 7-7-8 as to why the prosecuting attorney was being disqualified from [Faulkner's] case. Further, no supporting order narrowly drawn to [her] case was ever entered by the lower Court, to limit, by its terms, the prosecutorial discretion of the appointee."
The writ, Mazzei said, comes after Wilfong on June 11 denied his motion to dismiss the indictment following a May 25 hearing. Since jury selection was scheduled for Sept. 11, and trial to commence the next day, he said a writ was the only, and proper remedy to address a violation of Faulkner's constitutional rights.
Though it is unclear if the Court considered it, records show Jory filed a response to the writ the same day they denied it. In his response, he said the writ was unnecessary as Wilfong did not abuse any of her discretionary powers.
Nevertheless, Jory said there is no ambiguity as to his role. Though not specified in Wilfong's order appointing him – which he added can be retroactively entered – Jory said the oath he took on Sept. 7, 2011, was "narrowly drawn" as it "specifically stated that he appointment was "'for the purpose of State v. Autumn Rae Faulkner.'"
Also, Jory said the writ is a tactic to delay the trial. In the year since, Faulkner waited until eight months after his appointment to raise any objections about it.
"Simply put, [Faulkner] does not get to chose who prosecutes her," Jory said.
"She was served with a copy of the elected prosecutor's motion to recuse himself and filed no pleading objecting to an appointment," he added. "She makes not argument that there is a reason to remove the special prosecutor such as a conflict of interest or a personal interest in the case."
According to the Randolph Circuit Clerk's Office, both jury selection and the trial began as scheduled.
Partially as a result of allegations of misconduct in the Faulkner case, Busch resigned as prosecutor in December. An ethics complaint Wilfong filed against Busch for the "material misstatements" he made about possessing the videotape was included in a statement of charges the Court's Lawyer Disciplinary Board filed against him in February.
The Board's hearing panel subcommittee is scheduled to make its recommendation by the end of the year on what disciplinary action the Court should take against Busch.
West Virginia Supreme Court of Appeals case number 12-0962; Randolph Circuit Court case number 12-F-3