CHARLESTON – In a headline-grabbing Mingo County case, the state Supreme Court of Appeals must choose between police power and personal liberty.
The Justices will tip the balance of rights as they decide whether Wanda Carney and Betty Jarvis illegally interfered with an investigation into the murder of Carla Collins.
Mingo County jurors convicted Carney and Jarvis in 2006 on charges of obstructing police and conspiring to obstruct police.
Carney and Jarvis appealed, arguing they had no contact with the officers they allegedly obstructed. They claimed they properly exercised their right of free speech.
At oral arguments before the Justices on March 13, their attorney, Lonnie Simmons of Charleston, said he could not find a case where anyone was charged with obstructing police for acts they committed when police weren't present.
Simmons said West Virginia law provides for charges when someone forcibly or illegally obstructs police.
Justice Robin Davis asked him if police had to be present for the law to apply. Simmons said yes.
Mingo County prosecuting attorney Michael Sparks told the Justices that if they overturn the convictions, they will give license to family and friends of suspects to intimidate witnesses.
"This is not a freedom of speech issue," Sparks said.
Other than jury tampering, he said, there is no greater threat to justice than intimidation.
Carney and Jarvis mixed themselves up in a chain of events that began when Carla Collins told police that Pizza Plus restaurant owner George "Porgie" Lecco sold drugs.
Police raided Pizza Plus in February 2005. They recovered drugs and money but they did not arrest Lecco. He started cooperating with them.
In April 2005, Collins disappeared. Two months later, someone found her body.
Police charged several suspects, including Walter Harmon and Charles Jake Hatfield. They retained attorney Michael Clifford, who hired Carney as investigator.
Jarvis, as Harmon's aunt, offered to help in her nephew's defense.
Carney first interviewed Valerie Friend and Carmella Blankenship, who had been present at the murder. They told her Harmon wasn't there.
As Carney continued interviewing Mingo County residents, she kept hearing rumors that police participated in drug deals.
She heard that state trooper David Nelson and Collins had a sexual relationship.
She heard that a friend of Lecco, Alola Boseman, knew about drug deals. Carney, trying to reach Boseman from a Kanawha County phone, left a message.
Boseman called back. Carney expressed concern for her safety and gave her the name of an agent at the Federal Bureau of Investigation.
By that time, Sparks had dismissed all charges in Mingo County so federal agents could prosecute the murder in U. S. district court.
A federal grand jury convened, and Carmella Blankenship testified. She went home and cried on her porch.
Carney and Blankenship's former school counselor, Judy Harmon, approached her. She asked them to take her some place.
After checking with attorney Clifford, Carney checked Blankenship into a motel. Clifford reported the move to federal agents.
Jarvis also spoke to Boseman, at the Taste of Asia restaurant in South Charleston. Jarvis, like Carney, recommended that Boseman talk to the FBI.
Suspect Valerie Friend had gone to jail, leaving vacant her rented home in Matewan.
Landlord Charlie Burton had offered to sell or rent the house to Patricia Jablensky, so Jarvis found Jablensky and asked her to find Burton.
Carney, Jarvis, Jablensky and Burton drove to the house. Carney stayed in the car.
Burton's key didn't work, so he opened a window. Inside, he discovered that someone had broken into the house.
According to attorney Simmons, "Mr. Burton explained to them that Daddy Rat and Harold Scales had come with a man named Jim Nichols and hauled most of Valerie Friend's stuff out of the house."
Jarvis removed a Bible, two sheets of paper on witchcraft, two cameras and two film canisters.
Clifford turned the items over to the U. S. Attorney's office, except the film canisters. Jarvis took them to a store, but no photos developed and Jarvis paid nothing.
Although Sparks referred all other charges to federal authorities, he proceeded to trial against Carney and Jarvis in 2006.
Boseman and Jablensky testified, under immunity from prosecution.
Boseman admitted she was a cocaine addict and said Lecco gave her cocaine for free.
Trooper Nelson testified that Carney and Jarvis hindered the investigation by spreading rumors because police had to convince witnesses to trust them.
Jurors convicted Carney and Jarvis. Circuit Judge Michael Thornsbury sentenced them each to a year, but he suspended the sentences.
Simmons appealed. "The criminal convictions in this case represent an unprecedented and improper expansion of the crime of obstruction of a police officer," he wrote.
Carney and Jarvis never took any forcible or illegal action directly against a police officer, he wrote.
"These defendants had the right, under the First Amendment, to express their opinions regarding the police when speaking to witnesses and to explore the various rumors of police misconduct that were floating around Mingo County long before these defendants were involved," he wrote.
He wrote that, "Sixth Amendment rights of all criminal defendants are implicated if their investigators and people assisting in the investigation can be subjected to criminal charges merely for talking to witnesses, gathering evidence, and offering protection and shelter for a witness."
He wrote that there was no police tape at the house, and he pointed out that no one prosecuted those who broke into the house and took most of Friend's belongings.
Sparks responded that Carney and Jarvis took and concealed evidence. He wrote that they deceived and intimidated witnesses.
"Boseman believed that the police and United States Attorney's Office were crooked," he wrote. "Boseman came to believe that Boseman could end up dead like Collins if Boseman cooperated as a witness."
He branded Carney as a "pseudo-celebrity" for her guest appearances on a Charleston radio talk show and her political activity in West Virginians Want to Know.
At oral arguments, Simmons said the owner of the house let Betty Jarvis enter.
"Was it illegal when the owner opened the door? That's absurd," he said. "That can't possibly be illegal."
Sparks said Carney and Jarvis told witnesses that police would kill them, that police had sex with the murder victim, and that the U. S. Attorney was involved.
Chief Justice Spike Maynard said, "Don't you think everybody knew that was nonsense?" Sparks said no.
Justice Joseph Albright said, "If a police officer asks me for my cell phone and I don't give it to him, am I obstructing justice?"
Sparks said, "No, because you don't have a criminal design."
Albright said, "Is the federal government upset about this conduct?"
Sparks said they didn't want to harm a murder case. He said Carney and Jarvis created more work for police, calming witnesses and retrieving evidence.
He said, "You don't have to commit a crime for it to be obstruction."
Simmons, in rebuttal, said acts of obstruction have to be illegal.
A decision will follow.