CHARLESTON – Former state Supreme Court Justice Allen Loughry has been denied a second request for a new trial.
On Feb. 8, U.S. District Judge John Copenhaver issued an order related to a sealed motion seeking a new trial. Copenhaver previously denied Loughry’s other request for a new trial last month.
Copenhaver’s order relates to a juror who Loughry attorney John Carr claims denied his client his Sixth Amendment right to a trial by an impartial jury.
“On Oct. 23, 2018, the defendant’s counsel, John Carr, was approached by an individual on the street who instructed him to look at the Twitter account of Juror A,” Copenhaver’s order stated. “Defense counsel did so and found what was thought by defendant to be potentially troublesome activity from Juror A’s Twitter account.”
According to Copenhaver’s order, this juror had liked some tweets related to Loughry and the state Supreme Court situation. Carr also questioned why the juror had accessed social media during the trial when Copenhaver regularly told jurors to avoid social media and other media during the trial.
However, Copenhaver said there wasn’t evidence to show any bias on the part of Juror A, who had pledged to keep an open mind about the evidence in the case.
“Indeed, there is no evidence or allegation that Juror A posted anything related to the case during that time,” Copenhaver wrote. “There is no evidence that Juror A was exposed to any content related to the case. …
“Even assuming that Juror A was aware of some of the facts and issues involved in the case at the start of trial, and even assuming Juror A had a notion that the defendant was guilty of something, there is simply no evidence that Juror A was not capable and willing to set that aside and decide the case solely on the evidence presented.”
Carr also asserts that Juror A lied during jury selection about prior knowledge of the facts of the case. Copenhaver disagreed, saying Juror A “apparently set aside any preconceived notions, as Juror A affirmed under oath would be done, and judged the defendant fairly and impartially.”
“Even assuming that Juror A was aware of some of the facts and issues involved in the case at the start of trial, and even assuming Juror A had a preconceived notion that the defendant was guilty of something, there is simply no evidence that Juror A was not capable and willing to set that aside and decide the case solely on the evidence presented,” Copenhaver wrote. “Rather, there is evidence that after a thorough deliberation, the jury found the evidence to be insufficient in several instances, and therefore ruled in the defendant’s favor on those counts.
“The defendant points to Juror A’s tweet following the trial as evidence of bias. A juror’s willingness to sit on a jury, however, and relief when it is finished, is surely not indicative of any bias against the defendant.”
Loughry, through Carr, also claimed his right to a fair trial was denied because Juror A and five other unnamed jurors accessed social media during the trial and could have seen information about the case.
“The defendant asserts both in his motion and his briefing that the jurors were admonished by the court not to make any use of social media during the course of the trial,” Copenhaver writes. “The defendant, who fails to support that assertion with any citation of the record, is incorrect.
“Rather, the jury was informed repeatedly that the jurors were not to use social media to learn or discuss anything about ‘this case,’ a term which at times was referred to by use of the pronoun ‘it.’ Indeed, the jurors were not told that they could make no use of their cell phones, landline telephones, iPhones, or the tools of social media.”
Loughry will be sentenced Feb. 13 in federal court. He was found guilty on 11 charges in October, but Coperhaver dismissed a witness tampering charge against Loughry last month when he also denied Loughry’s request for a new trial. That date also was delayed after originally being scheduled Jan. 16. Copenhaver cited the need to allow revisions to pre-sentencing reports.
Loughry still faces sentencing on seven counts of wire fraud, one of mail fraud and two of making false statements to federal agents. Copenhaver wrote that the federal government can decide if it wants to retry Loughry on the witness tampering charge.
In one response to Loughry’s motion for a new trial, federal prosecutors painted Loughry as “vindictive and vengeful,” “not credible,” retaliatory and one who “would not hesitate to flex his power and authority to get what he wanted.” They also said Loughry and attorney John Carr failed to provide evidence to warrant a new trial.
Loughry resigned from the state Supreme Court in November.
A state Judicial Hearing Board hearing Loughry has been rescheduled for a second time The disciplinary hearing now is scheduled for Feb. 20 at the Wayne County Courthouse, where acting Chairman Darrell Pratt is a circuit judge.
The hearing, related to a 32-count Statement of Charges against Loughry filed in June by the state Judicial Investigation Commission, originally was scheduled for Jan. 14. Days before that hearing, it was rescheduled for Feb. 6. The disciplinary hearing was scheduled to be heard in the Visiting Judge’s Courtroom at the Kanawha County Judicial Annex in Charleston, but that courtroom isn’t available Feb. 20.
On Jan. 15, Copenhaver also filed an order moving former Justice Menis Ketchum’s sentencing from Jan. 30 to Feb. 27. Soon after, Ketchum's attorney James Cagle filed a motion seeking another date because of Cagle’s wife having a surgery scheduled for Feb. 27. Cagle’s office says the hearing will be rescheduled, but the new date has yet to be determined.
Ketchum pleaded guilty in August to one count of wire fraud. He admitted to using a state-owned vehicle and a state-issued gas card for personal use for golf trips to Virginia.
Ketchum resigned from the state Supreme Court in July.