CHARLESTON – Video from a March hearing shows a circuit judge briefly displaying his gun while addressing defense attorneys in an EQT royalties case.
Obtained through a Freedom of Information Act request by The West Virginia Record, the video of the March 12 hearing shows Second Circuit Judge David W. Hummel Jr. placing his gun on the bench shortly after the hearing began. About 10 minutes later, he lifts up the gun and shows it to defense attorneys Lauren Varnado, David Dehoney and Jennifer Hicks before placing it back on the bench.
The Daily Beast shared a portion of the video as well with its story about the footage.
Varnado
In a letter to Varnado, Wetzel County Prosecuting Attorney Timothy Haught said he has reviewed the video and sees no criminal wrongdoing.
“What I saw on the video tape was Judge Hummel displaying his firearm for a few seconds. It did not appear to me that he pointed his firearm at you or threatened you with the same during that time,” Haught wrote to Varnado on July 25.
In a follow-up letter on August 9, Haught reiterated that point.
“I have reviewed the courtroom video and the audio and the official transcript maintained by Judge Hummel’s Court Reporter, Holly Kocher, and do not find anything that constitutes a violation of West Virginias Criminal Code,” Haught wrote. “I did not see him or hear him threaten you, nor did I see him point the firearm at you.”
During a rare Saturday hearing on March 12 in Wetzel Circuit Court, Varnado said Hummel pulled a gun during the hearing and pointed it at her and her co-counsel. Since the story broke, it has received national and international attention. And other stories about Hummel have come to light, including him accusing children of lying in a neglect case while chastising the mother in court proceedings and how he might have violated state law in obtaining oil and gas interests.
In one of his letters to Varnado, Haught also confirmed the FBI is investigating the matter. The state Judicial Investigation Commission also reportedly is looking into the Hummel matter, but it will not confirm such an investigation.
West Virginia law permits a judge to carry a gun in his or her own courtroom. It does not address whether the judge can pull out or brandish the gun.
In his July 25 letter, Haught notes that the criminal misdemeanor offense of brandishing requires the display and use of a firearm in such a manner as to threaten a breach of the peace. There also is a one-year statute of limitations for filing charges.
Haught also tells Varnado he would appoint a special prosecutor to handle the matter if she does file a complaint.
“As Judge Hummel is a Circuit Court Judge for Wetzel County and I am an officers of his court and routinely appear before him, I do not feel it is appropriate for me to investigate or make prosecutorial decisions regarding this matter,” Haught wrote. “In the event you are alleging criminal conduct by Judge Hummel, I feel it would be appropriate for a special prosecutor to be appointed to make those decisions.”
Haught told The Record he hasn’t received a complaint from Varnado about Hummel.
“I can’t really release anything more unless it’s subject to FOIA disclosure,” Haught said. “My letters (to Varnado) stand for themselves.”
Varnado declined to comment on the video. Robert P. Fitzsimmons, Hummel’s attorney, has not responded to numerous requests seeking comment.
Fitzsimmons and Mark A. Colontonio of the Fitzsimmons Law Firm in Wheeling did sent a letter to Varnado last month demanding she cease and desist making false statements about the incident. It also asked her to preserve a host of evidence related to the case and her comments about the hearing.
Haught’s actions, however, are drawing criticism, according to The Daily Beast. It says one legal ethics expert says Haught’s approach “crossed a red line” by “trying to run interference for the judge.”
“Frankly, whether what he did would have satisfied the criminal definition of ‘brandishing’ or not seems to be besides the point,” Rutgers University law school professor Ronald K. Chen, who also chairs the New Jersey Supreme Court’s professional ethics committee, told The Daily Beast. “To make contact with a potential witness but one who has not complained – and essentially try to wave her off does not seem to be appropriate.”
“He sort of dares the possible victim, ‘I don’t think a crime was committed here. You didn’t file a complaint. Am I right?’ That does really seem to be the way a prosecutor would discharge their law enforcement function.”
Another professor told The Daily Beast that Haught’s letter “creates an atmosphere of partiality on the part of the prosecutor.”
“He is supposed to investigate, not make a determination without talking to the witness,” said Richard Zitrin, a professor at University of California Hastings law school. “It’s fine for prosecutors to talk to prospective witnesses. But it’s not fine for prosecutors to contact witnesses before the prosecutor knows what the witness is going to say and tell them that it’s not a crime.
That’s completely inappropriate.”
According to The Daily Beast, Hummel first denied having a gun that day in court.
“There is no incident,” he said in March. “I absolutely, categorically deny I had a gun that day in the courtroom. It was just me and the attorneys. I had no reason to have a firearm that day. … I’ve never shown a gun in my courtroom to anybody.
“I don’t want them to know that I have it. I do not display my firearm at any time during trial. … My job is not to protect anyone with firearms. That’s what my bailiffs and deputy sheriffs are for.”Bottom of Form
Last month, Hummel asked the state Supreme Court to voluntarily recuse himself from hearing any cases involving EQT.
“At this time, I find myself adverse to EQT entities and/or affiliates as a result of matters of national/international attention,” Hummel’s letter states. “If you would be so kind as to appoint another Circuit Court Judge to preside over this instant litigation, I will be most appreciative.”
As Hummel notes in the letter, fellow Second Circuit Judge Jeffrey Cramer previously had recused himself from hearing EQT cases. Hummel and Cramer are the only judges in the Second Circuit, which includes Marshall, Wetzel and Tyler counties.