Magistrate dockets at heart of attorney's dismissed DUI case

By Lawrence Smith | Aug 15, 2008


CHARLESTON – The decision as to whether DUI charges are reinstated against a Charleston attorney awaits a judge's interpretation of how magistrates handle their dockets.

On Aug. 8, a hearing was held before Kanawha Circuit Judge Irene C. Berger on a writ of prohibition filed by the Kanawha County Prosecuting Attorney's Office against Kanawha Magistrate Carol Fouty.

Filed on June 16 by Assistant Kanawha County Prosecutor Brenden A. Long, the writ asked Berger "to reinstate the charges that were wrongfully dismissed" against Charleston attorney Roger Wolfe.

According to court records, Wolfe, a senior labor law attorney with the Charleston office of Jackson Kelly, was arrested and charged on June 17, 2007 with one count each of DUI, improper lane charge, failure to obey a traffic light and obstructing an officer.

Trooper P.A. Green with the West Virginia State Police, who was leaving magistrate court, pulled Wolfe over when he noticed Wolfe driving erratically down Quarrier Street.

Upon asking Wolfe to exit his vehicle when he suspected Wolfe had been drinking, Green said Wolfe "repeatedly became belligerent, cursing and making inappropriate comments." Shortly thereafter, records show Green placed Wolfe under arrest.

Upon being assigned the case, Fouty set a bench trial on the charges for Sept. 19. At their request, Fouty granted the Prosecutor's Office a 90-day continuance in order to conduct additional discovery.

Records show no activity in the case occurred until May 30. It was on that day Long contacted Fouty about setting a new trial date.

According to court records, Fouty said she would contact Carter Zerbe, Wolfe's defense counsel, and re-set the cases for trial on June 16, the day before the statute of limitations was set to expire.

During their conversation, Long said Fouty made a comment that possibly demonstrated a "bias" regarding the case. According to Long, Fouty said "she thought Trooper Green had beat up Roger Wolfe because she had talked with a person that was there at the time the alleged injuries occurred to Roger Wolfe."

In both press reports subsequent to his arrest and recently filed civil suits, Wolfe alleges troopers brutalized him when he was taken to the State Police barracks in South Charleston for processing.

In a suit filed July 21, Wolfe names both Green and Trooper Jason S. Crane for serious injuries he sustained at their hands while in their custody.

On June 1, records show Fouty dismissed all the charges against Wolfe. In her dismissal, she cited the state's failure to prosecute, failure to provide defense counsel with notice of the June 16 trial and failure to provide requested discovery materials.

In his writ, Long objected to Fouty's dismissal citing violations of Rule 11 and 29 of the Magistrate Court Rules of Criminal Procedure. The former, Long wrote, requires a magistrate to provide both sides at least six weeks notice of a trial date, and the latter requires the state to turn over to the defense all discovery 21 days before trial.

Citing "a clear failure by the court [Fouty] to reset these cases," Long asked not only for Berger to reinstate the charges against Wolfe, but also order it reassigned to another magistrate "due to the bias expressed by Magistrate Fouty."

No factual disputes

During the hearing, Long, as well as Zerbe and Fouty's attorney Richard Lindroth, argued Rule 11 and 29 bolster their respective arguments. Though coming from different angles, both Zerbe and Lindroth argued the dismissal should be upheld since the state had ample time to conduct and turnover discovery following the September 19 continuance.

Acknowledging the state has a duty to turn over discovery, Long said it is the responsibility of the magistrates to set their dockets regardless of where the Prosecutor's Office is in the discovery process. Also, Long proffered the reason for his office's inquiry coming two weeks before the expiration of the statute of limitations was that the assistant prosecutor who previously handled the case transferred to Boone County.

When questioned by Berger if there were any disputes as to the facts of case, all three said no. This included whether Wolfe's right to speedy trial was met by setting it within 120 of his arrest.

At this point, Berger said she was not so much concerned about the case on constitutional grounds, but instead the "outer 1-year limit the [state Supreme] Court has placed on these matters." Though confessing "the magistrate's duty is to set his or her own docket," Berger said her initial reading of case law may not support that position.

Also, when Berger asked Long if the dismissal and alleged bias were separate issues, he said yes. As he did in his reply to Long's writ, Lindroth noted that there was "no substantial bias on any behalf of Magistrate Fouty."

After 30 minutes, Berger adjourned the hearing, and informed all three counsel she would be rendering a decision soon.

Kanawha Circuit Court, Case No. 08-MISC-219
Kanawha Magistrate Court, Case Nos. 07-M-7896-7899

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