Jarvis
Carney
Benjamin
CHARLESTON – State Supreme Court Justices who reversed criminal convictions of Betty Jarvis and Wanda Carney won't let them sue state troopers who investigated them.
On Nov. 18, all five Justices directed Kanawha Circuit Judge Paul Zakaib to dismiss their retaliatory prosecution and negligence claims against State Police.
The Justices found probable cause for their indictments and convictions on charges of obstructing police, even though the convictions didn't stand.
Zakaib must also dismiss individual claims against troopers D. M. Nelson, A. S. Perdue and C. E. Akers.
Charleston attorney Michael Clifford hired Carney in 2005, to investigate the murder of police informant Carla Collins.
Clifford represented Walter Harmon, one of the suspects.
Jarvis, an aunt of Harmon, offered to assist in her nephew's defense.
Carney interviewed suspect Valerie Friend and potential witness Carmella Blankenship, who told her Harmon wasn't present at the murder.
Carney and Jarvis entered Friend's home and secured items of evidence.
The state indicted them, alleging they removed Blankenship from Mingo County and delayed her interview with police.
The state alleged they affected the ability of witness Alola Boseman to trust police by accusing troopers of sexual misconduct and drug dealing.
In 2006, Mingo County jurors convicted Carney and Jarvis of obstructing police and conspiring to obstruct police.
The Supreme Court of Appeals reversed the convictions in 2008, finding they didn't use force or act unlawfully.
The Justices ruled that state and federal constitutions protected their speech.
Last year, Carney and Jarvis sued State Police, Nelson, Perdue and Akers.
Defendants moved to dismiss, and Zakaib denied the motion.
He rejected immunity for the troopers on the negligence claim, asking how a court could conclude that concepts of negligence don't constitute clearly established law.
He wrote, "Is the concept of negligence so novel that defendants or any other reasonable official could not have known about it?"
He found police needed to show that Carney and Jarvis would have been prosecuted in the absence of the conduct the Justices protected.
He relied on a U.S. Supreme Court decision in an employment case, but the Justices found he should have relied on a criminal case, Hartman v. Moore.
Under Hartman, Justice Brent Benjamin wrote, Carney and Jarvis needed to plead and prove the absence of probable cause for their prosecution.
Under Hartman, Benjamin wrote, an indictment is evidence of probable cause unless it was procured through fraud, perjury or false evidence.
"Significantly, the appellees were not only indicted but also convicted of the charges against them," he wrote.
Michael Mullins and Robert Bailey, both of Steptoe and Johnson in Charleston, represented State Police and the troopers.
Lonnie Simmons and Robert Bastress, both of DiTrapano, Barrett and Dipiero in Charleston, represented Carney and Jarvis.