ROMNEY - A petition for writ of prohibition and mandamus has been filed in a lawsuit against a Hampshire County magistrate by the State.

On June 18, Senior Trooper M.G. Spence filed a criminal complaint against Philip Lee Jr. for one count of domestic battery in violation of West Virginia code, according to a petition for writ of prohibition and mandamus filed July 10 in Hampshire Circuit Court.

On June 19, Magistrate Ronald J. DiCiolla checked and underlined the box "no probable cause found" on the criminal complaint and Spence contacted prosecuting attorney Daniel M. James to find out why no probable cause was found on the criminal complaint.

In his petition, James claims that on July 10, he and Spence met with DiCiolla to educate themselves as to what was wrong with the criminal complaint.

"In response, Magistrate DiCiolla stated that when [Lee] came in for his initial arraignment that [Lee] was in a wheelchair and that he found it was impossible for [Lee] to commit the offense," the petition states.

The state advised DiCiolla that the court was required by Rule 3 of the West Virginia Rules of Criminal Procedure for Magistrate Courts to determine probable cause only by what is contained in the criminal complaint.

"Rule 3 of the West Virginia Rules of Criminal Procedure states that a magistrate must determine if probably cause exists based upon the facts contained int he criminal complaint," the petition states. "In the matter sub judice the magistrate's sole reason for deciding not to find probable cause was that he believed that [Lee] was incapable of committing the criminal offense because he appeared in a wheelchair for his arraignment."

The state then inquired about a separate domestic battery complaint, wherein the magistrate also determined there was no probable cause, according to the suit.

"Specifically, the state advised that the victim had come to the Prosecutor's Office wanting to know why the charges were dismissed," the petition states. "When the state and...Spence informed the magistrate of this issue, the magistrate asked if the victim still wanted to pursue the criminal charges."

James claims this line of questioning shows a persistent disregard for procedural law.

"Whether or not a victim in a criminal matter desires to pursue charges in not for the court to decide," the petition states. "There are many reasons why the state, who in reality is the victim, may pursue charges even though a victim may decide otherwise."

James claims sometimes there are young children in the home that are subject to the abuse, other times the defendant's criminal history reveals history of violence.

"Regardless, those are not factors permitted to determine whether probable cause exists," the petition states.

The state is seeking the court issue a rule to show cause why the writ should not be granted and mandate the magistrate to decide if probable cause exists pursuant to Rule 3 of the West Virginia Rules of Criminal Procedure.

Hampshire Circuit Court case number: 14-C-91

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