Magistrates must follow Circuit Court discovery rules, Justices rule

By Steve Korris | Dec 29, 2006



CHARLESTON – West Virginia magistrates may lack deep legal training, but they can hear deep evidence in criminal trials, the Supreme Court of Appeals declared.

The Justices on Dec. 1 reversed the drunken driving conviction of Michael Doonan, finding that Wood County Magistrate Emily Bradley improperly excluded Doonan's expert witness.

Chief Justice Robin Davis and Justices Larry Starcher, Brent Benjamin and Joseph Albright granted Doonan a new trial.

Davis wrote the opinion, telling magistrates to follow the same rule of discovery and inspection that circuit judges follow in trials over more serious crimes.

State law requires no legal training for magistrates. In criminal cases, they possess power to sentence defendants up to a year.

Justice Spike Maynard dissented, but not on the side of police and prosecutors. He pressed an even stronger point on behalf of defendants.

Maynard believes anyone found guilty in magistrate court should have an automatic right to take the case to a circuit judge for a whole new trial.

Prior to 1994, he wrote, state law provided that right. Circuit judges held trials "de novo" –- from the beginning. Magistrate court records did not count.

Legislators 12 years ago decided that a defendant from magistrate court deserved a hearing in circuit court rather than a trial.

Instead of ignoring a magistrate's record, a circuit judge now sees nothing else.

Maynard wrote, "Non-lawyer magistrates are now charged with understanding intricate legal arguments made by lawyers and applying complex constitutional principles that persons with a law degree and years of experience may find challenging."

He wrote, "Significantly, at stake in the application of these complex legal principles is a person's liberty for up to a year."

Attorney General Darrell McGraw at first sided with police and prosecutors. He argued that exclusion of Doonan's witness amounted to harmless error.

In oral arguments, McGraw's assistants abandoned that position and confessed that the error necessitated reversal.

A Parkersburg police officer pulled Doonan over in 2004 for speeding. The officer took Doonan to the police station for a breath test.

Police charged Doonan with driving under the influence, a misdemeanor charge as a first offense.

Public defender John Ellem took the case with scant prospects of success.

The arresting officer would testify that Doonan failed three field sobriety tests.

A prosecutor would introduce evidence of a .134 breath test, above the legal limit.

Doonan, however, insisted on his innocence and questioned the quality of the evidence.

Ellem chose to dig in. He asked for trial by jury.

He sent prosecutors a request to discover evidence. He started hunting for an expert witness to cast doubt on the evidence.

Public defenders as a rule lack resources to hire experts in misdemeanor cases, but this time Ellem made it happen.

A week before trial a retired state police chemist agreed to testify for Doonan.

At trial the prosecution objected, arguing that Doonan failed to disclose the witness.

The prosecution argued that under West Virginia court rules, Doonan's discovery request triggered a reciprocal right of discovery for the state.

This took nerve, for prosecutors had not answered Doonan's request. In fact they planned to spring a surprise police witness on Doonan.

Magistrate Bradley agreed that Doonan's discovery request triggered reciprocal discovery for the prosecution. He excluded the witness.

The arresting officer told jurors he noticed alcohol on Doonan's breath, blood shot eyes and slight slurring of speech.

He testified that Doonan failed a walk and turn test, a horizontal gaze test and a one legged stand test.

The prosecution introduced a copy of a breath test. Ellem objected that it was not a certified copy and that it was illegible, but Bradley allowed it.

Ellem introduced evidence of his client's sobriety and disputed the results of the field tests, but without his expert he could not sway jurors.

At the end, he asked Bradley for a finding that there was not enough evidence to warrant conviction. Bradley denied it

Jurors found Doonan guilty. Bradley sentenced him to 48 hours in jail.

Doonan asked for a circuit court hearing.

Ellem argued to Circuit Judge George Hill that Bradley committed errors in excluding the witness, allowing the printout, and declaring the evidence sufficient.

Last year Hill upheld the conviction. He wrote that Bradley committed errors, but he declared the errors harmless.

For Doonan, Ellem sought reversal from the Supreme Court of Appeals.

In oral argument, McGraw assistants Barbara Allen and Colleen Ford conceded Doonan's point that exclusion of his witness was reversible error.

The case then boiled down to deciding which laws and rules should apply to criminal proceedings in magistrate court.

Chief Justice Davis left no room for confusion, answering in two words: Rule 16.

The rule covers discovery and inspection in criminal procedure.

It provides that if a defendant requests disclosure and the state complies, a defendant must disclose to the state a summary of testimony it intends to use.

Davis wrote, "Prosecutors can discover a defendant's expert witnesses only when triggered first by a defense request. Even then, the rule is not automatically reciprocal and applies only when the State makes a specific request."

She wrote, "When a request is not made regarding an expert witness, then there is no basis to exclude the proposed expert."

She wrote the state's failure to respond to Doonan's discovery request precluded a reciprocal request.

The majority also detected error in the illegible printout. Davis called the error harmless but cautioned against bringing the printout to Doonan's new trial.

The majority opinion shook Maynard.

He wrote, "Rule 16 does not specifically provide that it applies to magistrate court proceedings, and it should not be made to do so by this Court."

He wrote that applying Rule 16 "…is simply a bad idea because non-lawyer magistrates are not trained to handle such complex rules."

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