West Virginia Record

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Complaint filed against two attorneys over Tucker criminal case

By Lawrence Smith | Nov 5, 2010

CHARLESTON -– A Lewis County businessman alleges he was let down not by one, but two attorneys in a criminal case in Tucker County

Jerry Burkhammer on Oct. 5 lodged an ethics complaint against Dwight Hall and Chad Cissel with the Office of Disciplinary Counsel, the investigative arm of the state Bar. In his complaint, Burkhammer, 69, a self-employed salvage dealer, alleges Hall did little to prepare for his trial in Tucker Magistrate Court two years ago, and Cissel failed to address key issues in the trial in Burkhammer's subsequent appeal to the state Supreme Court.

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. On a date not specified, Burkhammer says he was ordered by Tucker Circuit Judge Philip M. Jordon not to enter into the towns of Thomas and Davis.

The order, Burkhammer says, stemmed from a prior custodial battle between his ex-girlfriend, Sheryl Kines, over their daughter Lindsay Brooke, where Burkhammer says he was stripped of his parental rights. He alleges it was not until after he was arrested he realized Jordon's order was inclusive of all Tucker County.

Following his arrest, Burkhammer says, Hall, a sole practitioner in Elkins, was appointed to defend him. Between then and when he went to trial a year later, Burkhammer alleges "we had very little time together to go over my case."

Hall failed to return repeated telephone calls to discuss the case. Also, Burkhammer says they met once before the trial which came when he made a surprise visit to Elkins and found him in magistrate court where his wife works.

Later, they met for a few minutes at the Kentucky Fried Chicken. The lack of preparation prompted Burkhammer to file a motion for new counsel which then-Chief Circuit Judge Andrew Frye denied.

When he went to trial, Burkhammer says things went from bad to worse. His case was assigned to Carol Irons, who, according to Burkhammer served as a bailiff for Jordan.

On a date and time not specified, Burkhammer alleges he confided to Irons how he felt Lindsay was "legally stolen" from him after Sheryl falsely accused him of molesting Lindsay. Though he expressed concerns to Hall that Irons had a potential conflict in presiding over his criminal trial, Burkhammer says Hall never made any motion to have her recused.

According to his complaint, Burkhammer says he as acquitted on the conspiracy charge, but found guilty of the contempt charge. Irons sentenced him to the maximum term 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.

Following Jordan's decision, Burkhammer says Hall withdrew as his attorney. In his place, Jordan appointed Cissel, with the Keyser law firm of Barr, Sites and Cissel to file Burkhammer's appeal to the Supreme Court.

The appeal Cissel filed with the Court in September 2008 addressed the harshness of Iron's and Jordan's sentence, and Hall's ineffective assistance of counsel. Specifically, Burkhammer says Hall erred by making him take the witness stand.

However, Burkhammer says Cissel failed to address not only Irons' and Jordan's potential conflicts, but also the validity of the protective order. Since Jordan's order barring him from entering Tucker County is constitutionally dubious, Burkhammer says he should have never been charged with violating it.

Records show the Court denied Burkhammer's appeal in February 5, 2009, three weeks after he was released from jail. However, he maintains he was not aware of that until several months later when he wrote a letter to the clerk's office asking about its status.

After learning his appeal was denied, Burkhammer says he wrote several letters asking Cissel for an explanation on why he failed to include the Irons/Jordan conflict, and the constitutional claims in his appeal. On a date not specified, Burkhammer says he received a letter from Cissel that included a copy of his appeal, and a statement "he was no longer my attorney and my case was closed."

In concluding his complaint, Burkhammer says he's baffled at "how not just one but two attorney's [sic] from outside of Tucker County could aid in perpetuating injustices against me from inside Tucker County." He says their failure to zealously represent him did both him and the criminal justice system a disservice.

"It seems to me that court-appointed attorney's [sic] don't seem to take their cases very seriously for their clients who are of a poorer class and can't afford high-priced attorney's [sic]," Burkhammer said.

"I'm sure there are others that are victims of the terrible legal work of Mr. Hall's and Mr. Cissels [sic]."

The West Virginia Record attempted to get a comment from Hall and Cissel about Burkhammer's allegations. Telephone calls placed to Hall's office where not answered, and a message informed callers they could not leave voice-messages due to the mailbox being full.

Multiple messages left with Cissel at his office were not returned by presstime.

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