Complaint: Tucker magistrate, judge had conflicts in Lewis man's criminal case

By Lawrence Smith | Dec 22, 2010

CHARLESTON -– A Lewis County businessman has lodged an ethics complaint against a Tucker County magistrate and judge for failing to recuse themselves from his 2008 criminal case.

Jerry Burkhammer filed a complaint against Tucker County Magistrate Carol D. Irons and Judge Philip B. Jordan Jr. Dec. 15 with the Judicial Investigation Commission, the arm of the state Supreme Court that investigates misconduct against judicial officers.

In his complaint, Burkhammer, 70, a Weston salvage yard owner and dealer, alleges because they were either familiar with or made unsubstantiated comments during the course of his abuse and neglect case, Irons and Jordan had a conflict of interest in hearing related criminal charges against him.

The complaint against Irons and Jordan comes of the heels of a similar complaint Burkhammer filed in October with the state Bar against his former attorneys Dwight Hall of Elkins, and Chad Cissel of Keyser. In that complaint, Burkhammer accused Hall and Cissel of failing to address Irons' and Jordan's potential conflicts first at trial, and during the subsequent appeal.

Last-ditch effort

According to his complaint, Burkhammer was arrested, and charged in July 2007 on one count each of attempt to commit conspiracy, and violation of a court order following his appearance at a four-wheeler race in Tucker County the previous May. The order, Burkhammer says, stemmed from a prior custody battle between his ex-girlfriend, Sheryl Lee Connor Kines, over their daughter Lindsey Brooke.

In 2002, Burkhammer says Sheryl accused him of molesting Lindsay. Though no criminal charges were ever filed, Jordan in 2004 stripped Burkhammer of his parental rights, and ordered that he have no contact with Lindsay until after she turned 18.

Jordan's order also included a prohibition that Burkhammer not be within the corporate limits of Davis and Thomas where Lindsay lived, and went to school. It was not until after his arrest that Burkhammer says he realized Jordan's order was inclusive of all Tucker County.

A year later, Burkhammer said his case went to trial, and it was assigned to Irons. Her familiarity, and participation in the one for abuse and neglect, created a conflict for Irons hearing his criminal case, Burkhammer says.

According to Burkhammer, Irons, during her one term as sheriff, served as a bailiff for Jordan. Also, sometime after she was elected magistrate in 2004, Burkhammer says he encountered Irons at the courthouse, and confided to her how he felt Lindsey was "legally stolen" from him as a result of Sheryl's accusations.

After their conversation, Burkhammer said Irons told him there was nothing she could do for him.

Though he addressed Irons' potential conflict with Hall, Burkhammer said he did not make a motion for her recusal. Records show following a one-day trial Burkhammer was acquitted on the conspiracy charge, but convicted on the violation of a protective order charge.

Irons gave him the maximum sentence of six months in jail.

Upon appealing the decision to Tucker Circuit Court, the case was assigned to Jordan. Though Hall did move for him to recuse himself, Burkhammer says Jordan denied it, and upheld the conviction, and Irons' sentencing.

In his complaint, Burkhammer alleges Jordan made prejudicial and inflammatory comments about him during the abuse and neglect case. On an unspecified date, Burkhammer alleges Jordan said he considered him to be a pedophile, and he should be in jail because of it.

According to Burkhammer, despite no prior criminal record, and no infractions while incarcerated, he served the entire six-month sentence until Jan. 17, 2009.

Three weeks later, the Supreme Court denied Burkhammer's appeal. Despite his instructions to include Irons' and Jordan's alleged conflicts in it, Burkhammer says Cissel, who by this time replaced Hall as his attorney, failed to do so.

In concluding his compliant, Burkhammer says he realizes that should JIC find Irons and Jordan somehow violated the Code of Judicial Conduct, it would not overturn his conviction. However, he added filing a complaint is his last resort to address abuses of his constitutional rights especially after a previous complaint he filed against Jordan in 2008 prior to his criminal trial regarding the alleged pedophile comment, and validity of the order barring him from Tucker County JIC dismissed saying other "avenues for appeal" were available to him.

"Well, you can see where that got me," Burkhammer said.

Deferring comment

When contacted, Irons, 64, said she was not aware Burkhammer filed a complaint, and deferred comment until then. Nevertheless, she was surprised he had an issue with her decision.

"I didn't even know there was an issue with him," Irons said. "We were always so nice to him."

After serving one term as sheriff from 2000 to 2004, Irons, a Democrat, was elected magistrate in 2004, and re-elected in 2008.

Jordan, 61, also deferred comment on Burkhammer's complaint until he had time to read it.

Also a Democrat, Jordan was first elected to the bench in 1998 to fill the unexpired term of Judge Taylor C. Reeves. He was elected to a full term in 2000, and re-elected in 2008.

Tucker County is part of the 21st Judicial Circuit with Grant and Mineral counties.

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