Misconduct in criminal cases leads to ethics charges against former Randolph prosecutor

CHARLESTON – A former Randolph County prosecutor accused of engaging in "a pervasive pattern of prosecutorial misconduct" will soon answer to the allegations before a state ethics panel.

            The Lawyer Disciplinary Board, the prosecutorial arm of the state Supreme Court, filed a two-count statement of charges Feb. 13 against Richard T. Busch.  In the statement, which acts like an indictment for disciplinary purposes, the Board alleges Busch, 42, of Elkins, committed 12 violations of the Rules of Professional Conduct when he, as the prosecuting attorney, misrepresented to Randolph Circuit Judge Jaymie Godwin Wilfong the status of evidence requested by defense counsel in two separate cases.

            Publicity regarding Wilfong making no secret she forwarded complaints against Busch to the Office of Disciplinary Counsel, the arm of the Court that investigates attorney misconduct, and a related probe by the Randolph County Commission into how Busch was managing the prosecutor's office led to his resignation late last year.
 
Waiting for a response

            The first count stems from Bush's prosecution of Judy Mae Blake.  According to the statement, Blake was arrested on December 7, 2009, and charged with embezzlement by a fiduciary.

            Along with her husband, J. Ronald Jr., Blake operated the Community Response Foundation, a non-profit organization that provided payee services for Social Security representatives.  Following Ronald's death on Nov. 29, 2009, Judy continued as CRF's director.

            The same day she was arrested, the Randolph County Sheriff's Department obtained a warrant to search all of her and CRF's computers.  Deputy A.G. Vanscoy signed a receipt for four computers, and 13 miscellaneous papers.

            On a motion made by Appalachian Benefits Assistance Corp., CRF's court-appointed conservator, Wilfong on April 8, 2010 ordered all the computers seized "be turned over, FORTHWITH, to the State Police Crime Lab and that a complete archival record for each computer be made and forwarded to Appalachian Benefits on an EXPEDITED basis."  Three weeks later, Vanscoy wrote Busch, and told him what would be necessary for the Lab to comply with Wilfong's order.

            When the records where not forthcoming, Wilfong ordered Busch on July 21 to appear, and explain why.  According to the statement, Bush said Sgt. Casto in Morgantown had possession of the computers, and he was still awaiting his response on the status of duplicating the materials.

            However, an unidentified person from the prosecutor's office the next day inquired about the computers, and was told they were still in the Sheriff's Department's evidence locker.  A week later, Wilfong ordered Vanscoy to personally transport them to the State Police Lab in Morgantown.

            On Aug. 24, Wilfong ordered that copies of all documents on the computers' hard drives be duplicated, and a copy provided to ABAC, and Blake's attorney, Steve Jory.  According to the statement, ABAC received copies, but Jory didn't.

            Following an exchange of letters between Jory and Busch for much of September 2010, Wilfong on Oct. 12 sent one to both making it clear Busch at the July 21 hearing was to provide Jory copies of the hard drive files.  According to the statement, Busch did not respond to Wilfong's letter, and later presented a case against Blake to the grand jury which returned an 11-count indictment against her on Oct. 25.

            However, in a letter dated Nov. 9 to Jory, Busch said while he considered the "'filed contained on the hard drives as neither relevant nor germane to the charges against your client'," he, nevertheless, "'had directed Deputy A.G. Vanscoy to release the original hard drives that were obtained.'"  Despite Busch's letter, the Sheriff's Department refused to return the hard drives without a signed court order.

            After signing an order compelling the Sheriff's Department to release the computers, Wilfong on Dec. 22 scheduled a hearing on Jory's motion to dismiss the indictment based on Busch's "multiple lies to the Court." During the hearing, Wilfong found Busch "made false statements to the Court in the July 21, 2010 hearing; attempted to shift the blame to others who were not responsible [and] failed to correct the false statements made to the Court in the July 21, 2010 hearing even after the Court gave him an opportunity to correct the same by the issuance of her Oct. 12, 2010 letter."

            According to the statement, Wilfong granted Jory's motion, and dismissed the indictment, with prejudice, on Jan. 11, 2011.  In her order, Wilfong said her decision was based on Busch "'clearly demonstrate[ing] a pervasive pattern of prosecutorial misconduct.'"  

            The same day, Wilfong reported Busch's alleged misconduct to ODC.

The cop 'lost' the evidence

            The second count stems from Busch's prosecution of Autumn Rae Faulkner, a former teacher at Elkins Middle School.  In February 2011, Faulkner was indicted on three counts each of Sexual Abuse by a Parent, Guardian, Custodian or Person in Position of Trust, and Sexual Abuse in the Third Degree.

            The indictment stems from allegations Faulkner had a sex with a then-14-year-old male student in 2008 and 2009. It was the third time Busch presented the case to the grand jury.

            The first time, the grand jury returned a no true bill, and though it did return an indictment the second time, Wilfong dismissed it based on an unsolicited comment made by one of the jurors.

            Following her arraignment on March 9, 2011, Faulkner's attorney, Rocco Mazzei, on April 15 made a motion to dismiss the indictment or in the alternative suppress evidence.  Mazzei's motion was based on Busch's failure to provide him with a videotaped interview between the boy and investigators.

            During a June 1 hearing, Busch maintained that he had never been in possession of the video.  Instead, Trooper First Class A.V. Loudin, who was assigned the case, somehow lost it, but was making a concerted effort to find it.

            Since Loudin was not at the hearing, Wilfong rescheduled it for June 7, and ordered both he and Busch to appear. During that hearing, Loudin not only testified the tape was never "lost," but also he had a copy in his investigative file, and Busch never asked him about it.

            Though he attempted to deny he blamed Loudin for losing the tape, Wilfong read a transcript of the June 1 hearing where he said otherwise.  After finding he, again, "made a material misrepresentation to the Court," Wilfong held Busch in contempt.

            On June 30, Wilfong held a hearing to consider sanctions against Busch.  In lieu of levying any fine, Wilfong announced she lodged a complaint against Busch with ODC on June 14.

            Also, Wilfong dismissed the indictment against Faulkner.  Later, she appointed Jory as a special prosecutor to determine whether the state should once again present the case to the grand jury.

            Records show, the grand jury on Feb. 27 again indicted Faulkner on the same six counts as the year before.  After pleading not guilty at her arraignment March 9, Faulkner was released on $1,000 bond.

            A trial date is scheduled for June 21.

Truth and consequences

            Due in part to the revelations of Busch's misconduct, the Commission hired Charleston attorney Jim Lees to conduct an inquiry into personnel problems at the prosecutor's office.  Before Lees could release his report, Busch on Dec. 5 abruptly resigned.

            As a result of the resignation, the Commission voted not to accept Lees' report or make it public. Later that month, they selected Michael W. Parker to fill Busch's unexpired term.

            Parker, who worked as an assistant prosecutor prior to Busch taking office in 2009, defeated Elkins attorney Dwight Hall in last month's Democratic primary. He faces no Republican opposition.

            For his misconduct, Busch is accused of violating Rules dealing with meritorious claims and contentions, condor toward the tribunal, fairness to opposing party and counsel, misconduct and special responsibilities of a prosecutor.  The latter, among other things, directs a prosecutor to "refrain from prosecuting a charge that the prosecutor knows is not supported by probable cause," and to "make timely disclosures to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense."        

            An evidentiary hearing on the statement of charges before the Board's hearing panel subcommittee is scheduled for Tuesday, June 5 at ODC's office in Kanawha City.

West Virginia Supreme Court of Appeals case number: 12-0174