Starcher
Cleckley
Raymond Richardson
CHARLESTON – The phrase "conflict of interest" seems to be haunting state Supreme Court Justice Larry Starcher.
The federal lawsuit filed last month against the state Supreme Court focusing on his refusal to recuse himself from cases involving Massey Energy, Starcher has ruled on at least three other cases with potential conflicts.
The most recent was in December when Starcher was among a four-person majority that voted to restrict Theodore R. "Ted" Dues, Jr. from practicing law in mental hygiene cases. Citing Dues' mental and physical health, and his prior experience as a mental hygiene commissioner, the Court felt the restriction, along with making restitution to clients, was a more appropriate punishment than the Board's 18 month suspension recommendation.
At the time of the ruling, Starcher and Dues were members of the board of directors of the state Martin Luther King Holiday Commission, according to the commission's Web site. Also, according to his profile on the Court's Web site, when he served as Chief Justice in 1999 and 2003, Starcher "promoted action in several areas of judicial administration, specifically … mental hygiene commission …"
Martinsburg lawyer's license annulled
About a year earlier, the Court ruled on a 6-point statement of charges brought by the Board against Keith L. Wheaton of Martinsburg. In its statement, the Board found that Wheaton committed 31 violations of the Rules of Professional Conduct when he wrote worthless checks to two clients for civil suits they won, and failed to file cases for four other clients after he was paid a retainer.
According to court records, Wheaton asked the Court for leniency citing mitigating factors such as his lack of a prior disciplinary record, inexperience in the practice of law and remorse in harm to his clients as mitigating factors. Instead of an annulment, Wheaton asked the Court to suspend his license for 18 months whereupon returning to the practice of law he would be supervised for three years.
In a 3-2 decision, the Court voted to annul Wheaton's license citing how "aggravating factors outweigh the possible presence of any mitigating factors."
In its ruling the Court categorically rejected Wheaton's claims of mitigating factors citing a pattern of misconduct from 1997 to 2002, "misappropriating funds and unlawfully converting client funds to his own personal use" and "making false statements to disciplinary counsel during investigations of ethical complaints."
Helping to serve minorities
Starcher and former Justice Warren McGraw were the two dissenting votes. In his dissenting opinion, Starcher believed a three-year suspension was sufficient punishment given that Wheaton "got in way over his head and made some serious errors in judgment."
"The majority details Mr. Wheaton's errors in several cases," Starcher said, "but it does not discuss the many legal matters in which Mr. Wheaton did handle properly; nor does it take into consideration how his work did bring an important degree of racial diversity to the legal community in the Eastern Panhandle."
Also, Starcher said Wheaton was due some leniency since in 1996 when he moved from Charleston where we was working in the criminal investigation division of the state Department of Tax and Revenue, to Martinsburg, to "establish a solo practice there to help meet the under-served needs of that area's large African-American community."
This move, Starcher said in his opinion, was "urged by my friend, the distinguished former Justice of this Court, Franklin Cleckley."
A justice from 1994-1996, Cleckley holds the Arthur B. Hodges chair of law at West Virginia University's College of Law. According to his biography, he has been a professor since 1969 except the two years he served on the Court.
Prior to his election to the Court in 1996, Starcher, 63, served as circuit judge in Monongalia County from 1976 to 1996. Also, since 1992, Starcher has served as an adjunct lecturer at WVU's law school.
Along with Starcher, Cleckley serves as a Commission board member.
Domestic violence appeal
On Nov. 10, 2003, the Court ruled on an appeal from Kanawha County Circuit Court regarding Raymond A. Richardson. According to court records, Richardson claimed the 30-year sentence he received in 2001 for kidnapping was "disproportionate to the crime committed, and that the sentence is, as a consequence, unconstitutionally impermissible."
In May 1999, Richardson was arrested and charged with kidnapping, malicious wounding, wanton endangerment and domestic battery after he interrogated his then-girlfriend, Angela Franks, for 14 hours about her alleged sexual relations with another man while urinating on and dousing her with gasoline during his interrogation.
Upon agreeing to a guilty plea on kidnapping and wanton endangerment charges, Judge Louis H. "Duke" Bloom sentenced Richardson to a concurrent term of 30 years for kidnapping, the maximum sentence allowed by state law, and five years for wanton endangerment.
In a ruling delivered per curium, the Court sided with Richardson in saying that the maximum sentence imposed by the trial court "does shock the conscience and is constitutionally impermissible" and ordered Richardson's kidnapping sentence reduced to 10 years to run concurrently with the wanton endangerment charge.
To bolster its decision, the Court said the trial court erred when it failed to consider the plea of Franks, who was pregnant with Richardson's child, for leniency saying she and the baby were not permanently injured because of his actions. Also, the Court cited an evaluation performed on Richardson by clinical and forensic psychologist Dr. David A. Clayman who stated that "the longer the appellant spent in prison, the less likely he would be able to engage in socially acceptable behavior upon release."
Justice Robin Jean Davis agreed the sentence should be reduced, but disagreed that the Court should be the one to decide a new one. Citing the lack of a precedent in West Virginia, Davis said the discretion in a new sentence should be left to the trial judge.
"In the instant case, the majority was not confronted with a trial court that refused to reduce a sentence ordered by this Court," Davis said. "Without such a refusal, no justification existed for the majority to impose a specific sentence in this case. Moreover, the majority decision sends a chilling message to trial judges, i.e., that the majority does not trust trial judges. Nothing in this case warranted stripping the trial judge of its authority to select a permissible sentence on remand."
Kanawha County Prosecuting Attorney Bill Charnock agreed with Davis. Charnock told the Sunday Gazette-Mail "that whole decision was bizarre."
"When that case came down, I thought it was unusual they didn't remand it back to circuit court for another sentencing hearing," Charnock said. "They stuck another sentence on, and that was unusual."
Mother denies influence
An individual who worked at the South Central Regional Jail in South Charleston after Richardson's conviction said he bragged about how he was soon going to be released. According the individual, who spoke on condition of anonymity, Richardson said his mother worked in the Supreme Court with Starcher and he was going to help.
According to court records, Starcher concurred with the Court's decision to reduce Richardson's sentence.
Richardson's mother is Roblene C. "Robin" Beatty. She has been employed as a secretary for the Court since 1997 and, according to its Website, currently works in the Chief Counsel's Office.
When questioned about it, Beatty, 45, has been adamant her employment with the Court in no way influenced its decision to reduce her son's sentence.
In 2005, she told the Sunday Gazette-Mail "No, not at all. Absolutely not" and reaffirmed that position recently with The Record.
"No it does not," Beatty said about her employment influencing the Court's decision.