Public defender challenges judge's use of Magistrate Express

CHARLESTON - A Kanawha Family Law judge is accused of acting more of an adjunct prosecutor than a neutral fact-finder in criminal domestic violence cases.

Judge Michael J. Kelly is named as respondent in a writ of prohibition filed by Thomas D. Cobb III in Kanawha Circuit Court. In his petition filed May 1, Cobb seeks an order prohibiting Kelly from conducting an independent investigation into prior criminal charges against him which, according to his court-appointed attorney, Kelly has improperly done in at least two other cases.

According to the writ, Cobb was charged with domestic battery on April 5. The events that led to the charge and the alleged victim are not stated.

However, following his arrest, Cobb’s bond was set at $5,000 surety and assigned to Kelly. Under a pilot program created last year by the state Legislature and under the guidance of the state Supreme Court, all domestic violence-related cases in Kanawha County are assigned to either Kelly or Magistrate Julie Yeager.

Upon being appointed his attorney, Assistant Kanawha County Public Defender Sara Whitaker on April 30 filed a motion for bond reduction. In considering the motion, which was tentatively scheduled for May 3, Whitaker said Kelly should be prohibited from using Magistrate Express - a computer database available to prosecutors, public defenders and courthouse personnel - to conduct an independent investigation into any prior criminal charges against Cobb.

In her writ, Whitaker maintains such an investigation not only violates state law but also the Code of Judicial Conduct as it amounts to an ex parte communication. Though she acknowledged the court in State ex. rel. Ghiz v. Johnson affirmed the ability of judges to consider a defendant’s prior criminal history during a bond reduction hearing, Whitaker said a judge can only consider the charges when presented them by either the prosecutor or defense counsel.

By Kelly using Magistrate Express, which according to Whitaker does not always contain accurate and up-to-date information, to conduct his own investigation into Cobb’s background violates Cobb’s rights in at least two ways, Whitaker says. The first is to have a neutral arbiter consider his case, and the second is to confront the fact-finder about the information he found.

“When [Kelly] steps out of his judicial role to uncover information about a defendant’s criminal history,” Whitaker said, “[Kelly] risks - at the very least - the appearance of bias against the accused.”

“Moreover, that [Kelly] steps out of his judicial role to step into the prosecutor’s role is a clear indication that the adversarial system is not working as it should.”

In the writ, Whitaker said Kelly improperly conducted independent investigations into criminal charges against Tony Blankenship, Jr. and Darius Revels in their bond reduction hearings earlier this year. She attached transcripts of those hearings showing where Kelly overruled her objections to him using Magistrate Express.

The West Virginia Record attempted to view the criminal complaint against Cobb. As of presstime, the case file was not available.

A search of records in the Magistrate Clerk’s Office showed no pending or prior domestic violence protective orders filed against him.

The case is assigned to Judge Jennifer Bailey.

Kanawha Circuit Court, case number 13-P-241

Kanawha Magistrate Court, case number 13-M-2724