Kanawha prosecutors take issue with circuit judge's order

By Jessica M. Karmasek | May 30, 2012

Webster CHARLESTON - Kanawha County prosecutors contend Circuit Judge Carrie Webster, in excluding what they describe as "major evidence" in a 2010 murder, has "completely gutted" their case.




CHARLESTON - Kanawha County prosecutors contend Circuit Judge Carrie Webster, in excluding what they describe as "major evidence" in a 2010 murder, has "completely gutted" their case.

Kanawha County Prosecutor Mark Plants' office, in a petition filed March 30 with the West Virginia Supreme Court of Appeals, is seeking a writ of prohibition against Webster.

"The Respondent erred in acting outside her legitimate powers and exceeded her legitimate authority by excluding the shell casings recovered at the scene of the crime and instructing the State of West Virginia to refrain from mentioning or eliciting testimony at trial regarding the shell casings," the office wrote.

The casings at issue -- 10 mm shells -- were found when police arrived at the scene of the murder, at the intersection of Park Avenue and Virginia Street in Charleston July 4, 2010.

When police arrived, the victim, Jeremy Parsons of Poca, was found shot and slumped over in the passenger side of his Cadillac Eldorado. The car then crashed into a barrier near the Sav-A-Lot store.

The defendant, David Washington Kinney, was arrested Oct. 22, 2010.

Kinney's lawyers, in a brief in opposition to the State's petition filed April 5, argue that Webster acted within her discretionary powers to sanction for discovery violations, pursuant to the state's Rules of Criminal Procedure.

"The State's discovery violations prejudiced Defendant's ability to prepare for trial, the delay resulting from the discovery violations have prejudiced Defendant, and further delay of the case would have further prejudiced Defendant," the defendant's lawyers wrote.

"Accordingly, the exclusion of the shell casings was the proper remedy under Rule 16(d)(2) and within the circuit court's legitimate discretionary powers."

The state's high court heard oral arguments in the case Wednesday morning.

Erica Lord, an assistant prosecuting attorney, argued on behalf of Plants' office. Olubunmi Kusimo of Charleston law firm DiTrapano, Barrett and DiPiero PLLC argued for Kinney.

Lord, first, argued Webster's March 9 final order contains numerous inaccuracies -- in particular, that the prosecutor's office and/or the Charleston Police Department "intentionally withheld" the shell casing evidence.

Lord alleged that the judge indicated otherwise during hearings.

"She has completely gutted our case," the assistant prosecutor told the Court. "She has effectively issued a de facto dismissal."

The casings were at the State Police lab the entire time, Lord said.

"These casings are the major evidence linking the defendant to this murder," she said, noting that the case is circumstantial.

But Kinney's lawyer, Kusimo, argued the State is at fault, not Webster.

"My client has a right to see the evidence and have it independently tested," she told the justices. "The State has refused to comply with the court's orders and provide timely discovery."

As a result, Kinney has been deprived of his right to a speedy trial, Kusimo told justices.

"The State is upset because the judge has excluded evidence," she said, calling the casings themselves "doubtful."

"The judge excluded it, and they're upset about it. Meanwhile, my client's rights have been completely steamrolled by the State of West Virginia."

Lord, who admitted the prosecutor's office should be held somewhat responsible for the shell casings being "lost" at the State Police lab, told the state's high court that she's not saying her office shouldn't be sanctioned at all.

"But completely gutting our case?" she told the Court.

The justices seemed hesitant in coming up with a proper sanction in the place of Webster's order.

"How would we do that exactly?" Justice Margaret Workman asked Lord.

Lord suggested not allowing the prosecutor's office to admit the testing done by the State Police lab, itself.

Still, the justices expressed doubt that excluding that testimony would be enough.

"What's the culpability of the prosecutor's office then?" Chief Justice Menis Ketchum wondered.

This wouldn't be the first time Webster's orders have come into question.

Twice already this year, the Supreme Court has ordered the judge to issue her rulings quickly.

In February, the Court ordered her to rule on a motion that had been pending since January 2011.

In April, she was ordered to rule on a petition from a convicted murderer that had been pending since September 2009.

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