CHARLESTON – While the legal team for two Charleston women convicted of obstruction of justice believes the state Supreme Court should overturn those convictions because their actions in a murder investigation were constitutionally protected, the prosecutor in the case says the convictions should be upheld because the appeal is nothing more than their attempt to further their "pseudo-celebrity" status.
On Tuesday, March 12, the Court will hear oral arguments in the case of State of West Virginia v. Wanda Carney and Betty Jarvis. The pair is asking the justices to set aside their 2006 conviction from Mingo Circuit Court on obstruction of justice-related charges.
According to court records, Carney and Jarvis were found guilty on Sep. 8, 2006 in a joint jury trial on one count each of obstructing a police officer, and conspiracy to obstruct a police officer. On Oct. 23, 2006, Mingo Circuit Judge Michael Thornsberry sentenced Carney and Jarvis each to one-year concurrent terms on both charges.
However, Thornsberry suspended their sentences, and instead placed Carney and Jarvis on three years probation to include 120 days home confinement, 200 hours of community service and completion of a higher education class in criminal justice/procedure. Also, each was to pay $2,089.33 in fines and court costs.
With the assistance of their attorneys, Lonnie Simmons and Jason Huber, with the Charleston law firms of DiTrapano, Barrett and Dipiero and Forman and Huber, respectively, and Michael T. Clifford, Carney and Jarvis filed their appeal in June. On Sept. 11, the Court agreed to hear it.
If anyone is guilty of obstruction, says Simmons, the lead appellant counsel, it's the Mingo County Prosecutor's Office. Not only does Carney and Jarvis' conviction "represent an unprecedented and improper expansion of the crime of obstruction of police officer," but also "has criminalized constitutional conduct."
Investigations set in motion
The case against Carney and Jarvis begins in June 2005. It was then, Carney, working as investigator for Clifford, began making trips to Mingo County to obtain evidence on behalf of Walter Harmon.
According to court records, Harmon was accused of murdering of Carla Collins, a federal drug informant, in April 2005. Collins' body was found in a makeshift grave near the charred remains of what was once her trailer.
Carney's investigation reveled that though Harmon played a role in Collins' death, he was not the one who actually killed her.
Instead, George "Porgie" Lecco and Valerie Friend were convicted in U.S. District Court of Collins' murder.
Convinced Collins was tipping off police to the cocaine he was moving through his Pizza Plus restaurant, Lecco ordered Friend to shoot and kill Collins. Prior to a jury finding Lecco and Friend guilty of Collins' murder, court records show Harmon plead guilty to being an accessory after-the-fact.
He admitted to burning the trailer, and burying Collins so as to conceal evidence.
Jarvis, who, according to court records, is a native of the Newton area, and Harmon's aunt, accompanied Carney in a later trip to Mingo County on July 18, 2005. Accompanied by three other people, Carney and Jarvis went to a house owned by Charlie Burton that he rented to Friend in Matewan.
Along with Burton and Patricia Jablensky, who, according to court records, was also charged with obstruction, but later granted immunity, Jarvis entered the house. After looking around, Jarvis removed some items including a Bible, two cameras and two film canisters, and returned to the car where Carney and another investigator, Wetzel Bowe, were waiting.
One investigation hinders another
It is at this point where Mingo County Prosecutor C. Michael Sparks says the pair's visits to Mingo County became problematic for police.
"The evidence was tainted and had no value after being taken from Friend's residence and concealed by Appellants," Sparks said in his reply brief submitted to the Court on Feb. 1.
"Appellants had to be prompted by the United States Attorney's Office to turn over the stolen evidence to the United States Attorney's Office," Sparks added. "Even more troubling, Appellant Jarvis took at least two film canisters and film from Friend's residence that Appellants concealed and never turned over to police or the United States Attorney's Office,"
In the appeal brief submitted Nov. 13, Simmons contradicts Sparks' assertion that Carney and Jarvis tampered with and concealed evidence. During the trial, West Virginia State Police First Sargent D.M. Nelson testified that not only was he aware that others had entered Friend's house prior to Jarvis, but also "that the materials removed from the house had no significance to the murder of Ms. Collins," and "that the items removed from this house were provided to the United States Attorney's Office by Mr. Clifford,"
In addition to tampering with evidence, Sparks' said "Appellants hindered the police investigation by deceiving and intimidating material witness Alola Boseman with blatantly false and defamatory accusations against lead investigators [Nelson], Trooper First Class A.S. Perdue and First Lieutenant C. E. Akers."
Specifically, Sparks maintains that Carney told Boseman that Nelson had a sexual relationship with Collins, and that she might be killed, too, to cover-up Collins' murder. Also, like she did with another witness, Carmella Blakenship, Sparks avers that Carney offered Boseman "protection" by hiding her in a safehouse away from Mingo County.
Again, Simmons refutes Sparks' claims. According to his brief, Simmons says "When Defendant Carney first got involved in this investigation, the rumors regarding Trooper Nelson and the dirty police already were rampant," and "Carney never discussed any of these rumors with the media."
Though both Carney and Jarvis deny ever saying that the police might kill Boseman, Simmons says they did express concern for her safety.
Likewise, Carney did in fact offer Boseman a place to stay in Charleston, but it was only after Boseman inquired about it which, according to court records, she eventually declined.
In his brief, Simmons noted that Boseman was granted immunity from prosecution and later placed in the witness protection program.
Criminalizing the Constitution
In arguing for reversal of Carney and Jarvis' convictions, Simmons makes two points. First, the State failed to meet its burden in proving that client's actions constituted obstruction of a police officer.
The applicable statute says for an obstruction of police officer conviction to be sustained, the State must prove a person "forcibly or illegally" hindered or obstructed a police officer in his or her duties, Simmons argues. In the indictment against them, Carney and Jarvis were accused of "unlawfully, knowingly, intentionally [and] illegally" hindering police in Collins' murder.
Sustaining Carney and Jarvis' conviction would set a dangerous precedent, Simmons says.
"This Court has never affirmed a conviction under this statute where the defendant is accused of taking some forcible or illegal action against another person, who is not a police officer, which action somehow resulted in some unknown police officer, who was not present at the time, being obstructed or hindered in the lawful exercise of his official duties," Simmons said.
Second, by prosecuting Carney and Jarvis on obstruction charges, the State of West Virginia has now criminalized the First and Sixth Amendments of the U.S. Constitution. Citing both the state Supreme Court's ruling in the 1988 case of State ex rel. Wilmoth v. Gustke and the U. S. Supreme Court's ruling in City of Houston v. Hill the year before, Simmons argues Carney and Jarvis discussing allegations of police misconduct with witnesses is constitutionally protected, even if it was done outside the course of investigating Collins' murder.
"Since constitutionally protected activity is, by definition, legal activity, such activity cannot be the basis for an obstructing a police officer charges," Simmons said.
In rebuttal, Sparks maintains that Carney and Jarvis' argument that their conviction is flawed because they took no "direct action" to hinder the police is irrelevant. Because they engaged in "multiple acts …of deceiving and intimidating witnesses" Carney and Jarvis "hindered the murder investigation by causing witnesses distrust and uncooperativeness, as well as numerous unnecessary delays."
Also, Sparks says the facts in the Wilmoth and City of Houston cases are "quite distinguishable" from Carney and Jarvis'. Citing the U. S. Supreme Court's 1942 ruling in Chaplinsky v. New Hampshire, and the state Supreme Court's 1986 ruling in State v. Davis, Sparks said "Freedom of speech must be balanced against compelling public concerns."
"This Court has not established free speech protection in obstructing cases when insulting or fighting words and opprobrious language are used," Sparks said citing the Davis decision.
"There was unquestionably a legitimate and compelling public interest in determining who brutally murdered a cooperating federal witness," Sparks added. "Appellants' blatantly false and defamatory accusations were made during the context of a vitally important murder investigation and created a clear and present danger of the government's efforts in identifying and apprehending dangerous murderer[s]."
In concluding his brief, Sparks resorts to a personal attack on Carney and Jarvis' credibility.
Carney, says Sparks, "appears to thrive on the controversy created by her tabloid radio show appearances and West Virginia Wants to Know shenanigans. It is clear that Appellant Carney irresponsibly attempted to expand Appellant Carney's provocative footprint into Mingo County at the expense of the criminal justice system and highly respected police officers."
Likewise, Sparks said, "Appellant Jarvis appears to have also thrived on controversy and attempted to utilize scandalous innuendo to prevent the prosecution of her nephew and first cousin."
The first cousin to whom Sparks is referring is Lecco. However, court records show, Jarvis never did any work on his behalf.
"There is no Sixth Amendment implication because Appellants primarily endeavored to manufacture corruption and leverage against politicians and police officers rather than find exculpatory evidence for Appellant Carney's clients [sic]," Sparks said.
In defending his clients, Simmons concedes that both Carney and Jarvis "are not timid wallflowers who are afraid to get involved in controversy" and on many occasions have "ruffled a few feathers."
Assuming their sole motivation was to uncover corruption in Mingo, Carney and Jarvis have done the public a favor.
"Throughout their careers," Simmons said, "Defendants have attempted to exercise their First Amendment rights in an appropriate and responsible way and, whether everyone agreed with them or not, have tried to improve government and benefit society through their actions."
West Virginia Supreme Court of Appeals, Case No. 33522