CHARLESTON - Justice Larry Starcher of the West Virginia Supreme Court of Appeals rebuked Justice Brent Benjamin for describing a decision granting a new trial to a criminal defendant as a gift.

"A fair trial is not a 'gift' – it is the right of every defendant," Starcher wrote in a June 12 concurring opinion. "No responsible jurist will reverse a jury verdict unless there is a bona fide belief that serious legal unfairness has occurred."

Three of five Justices decided May 10 that rape and weapons suspect Denver Youngblood Jr. deserved a new trial.

Starcher, Chief Justice Robin Davis and Justice Joseph Albright agreed that police improperly suppressed a note that might have helped his case.

Davis wrote that the West Virginia Constitution required disclosure of evidence that could impeach prosecution witnesses.

She wrote that prosecutors had a duty to show Youngblood the note even though police did not tell prosecutors about the note.

Benjamin and Justice Spike Maynard dissented.

Benjamin's dissent accused the majority of trying to sanitize Youngblood, hide his weapon and hand him a script to follow at trial.

Benjamin declared the note unpersuasive and inadmissible.

He wrote that Youngblood wore a stun belt at trial due to pending proceedings in another case.

He called the decision a gift, and that lit a fire under Starcher.

"A police officer obtained a document that called into question the veracity of one or more major prosecution witnesses; the document would likely have been a powerful cross-examination tool for the defendant; and the document should have been disclosed by the State to the defendant," Starcher wrote. "Because the document was not disclosed, a new trial is required. It is that simple."

He added a protest against stun belts.

"Stun belts are fearful and exceptionally coercive devices that should be used only in the most extraordinary situations," Starcher wrote.

He wrote that when stun belt issues arise, judges and attorneys should cleave to decisions in U. S. v. Durham and People v. Mar.

He wrote that if a circuit court ordered a stun belt without following thorough procedures, he would presume harm and reversible error.

Morgan County jurors convicted Youngblood in 2001. Circuit Judge David Sanders sentenced him to 26 to 60 years in prison.

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