WV SUPREME COURT JUSTICE DAVIS IS ALL HOPPED UP ON GOOFENTHAUL AND A COMPLAINT WAS FILED WITH THE JUDICIAL INVESTIGATION COMMISSION!

By Hurricane Rina McCoy — Cosmos Communicator Editor

Chief Justice Robin Jean Davis of WV arrogant, and ethical gremlin and a certified moron?

Unfortunately for West Virginians, Robin Jean Davis became a justice on the West Virginia Supreme Court of Appeals in 1996 and remains on the bench as of this writing. Justice Davis’ so-called lawyer husband, Scott Segal is a plaintiff’s lawyer (ambulance chaser) who focuses on mega-lawsuits against deep-pocket corporations, many of which appear to be frivolous to the nth degree.
Since her ascension to the West Virginia Supreme Court, Justice Davis has helped in making West Virginia almost heaven for trial lawyers – including of course her hubby Scott.
Robin and Scott were severely criticized in regards to a case in which the West Virginia Supreme Court ruled that plaintiffs who claimed possible exposure to toxic substances (asbestos, etc.) could collect large sums from corporate defendants for lifetime medical testing. Hey Scotty — would you support free lifetime colonoscopy testing for victims of judicial misfits like your wife Robin, and ambulance chasers like yourself?
 
Shortly thereafter, Scotty became involved in a lawsuit seeking such medical monitoring on behalf of healthy smokers. Justice Davis dismissed any suggestion that she should have recused (withdrew) herself from the case by noting, “There’s not a personal-injury case that comes before this court that at some point, some time, couldn’t affect my family.”
Now, this is one arrogant simpleton! Apparently, this nitwit is incapable of comprehending the meaning of the term “conflict of interest.” Where does she get off thinking she has a right to judge cases that involve her husband? Since she’s married to this ambulance chaser, we must presume that she shares in any booty (fees) that he collects via court approved extortion of deep pocket defendants.
 
The Segal Law Firm
This firm was formed on Nov. 6, 1996, when Robin, one of its founders was elected to the Supreme Court.
 
This celebrated ambulance chasing firm has the chutzpah to claim it was formed “to serve the needs of the working men and women of West Virginia.” This is pure bunk. It was formed to take advantage of Robin’s new position of influence, and to enrich Scotty (Robin gets half as a wife) and the other attorneys while they troll for alleged victims in pursuit of ripping-off deep pocket corporations.
On his website, Scotty has the chutzpah to spin the following hyperbolic (BS): “Few catastrophic injuries are the result of fate. Law, engineering, science and medicine are the tools which we stop the irresponsible.” Hey Scotty Baby, what tools would you personally recommend to prevent Judicial Misfits such as your wife Robin from inflicting on the good citizens of West Virginia? Would an industrial strength inversed chastity belt receive your stamp of approval Scotty?
Chief Justice Robin Jean Davis’ Total Lack of Ethics
It is obvious to this writer that Robin lacks the intellect to appreciate what a “conflict of interest” really is. For this ninny to assert that there isn’t even the “appearance” of a “conflict of interest” when she sits in judgment of cases involving her husband’s financial interests is an unmitigated falsehood and she knows it.
This is akin to believing that there would have been no conflict of interest had the late President of Uganda, Idi Amin been employed to give an honest critique on the rather novel dining habits of Jeffrey Dahmer.

 Complaint Filed with WV Judicial Investigation Commission

Judicial Disciplinary Counsel

Compo No. 178-2011

City Center East, Suite 1200 A
4700 MacCorkle Ave. S.E.
Charleston, West Virginia 25304

BEFORE THE
JUDICIAL INVESTIGATION COMMISSION
OF WEST VIRGINIA

COMPLAINT CONCERNING A JUSTICE, CIRCUIT JUDGE, FAMILY LAW MASTER, MAGISTRATE, MENTAL HYGIENE COMMISSIONER, JUVENILE REFEREE, SPECIAL COMMISSIONER OR SPECIAL MASTER NAME AND ADDRESS OF JUDICIAL OFFICER:

Justice Robin Jean Davis who served as CHIEF JUSTICE in September of 2007
(in care of Address is above)
NATURE OF COMPLAINT:

CHIEF JUSTICE Robin Jean Davis brought forth FALSE FACTS that were NOT in the COURT RECORD in her majority opinion filed: October 26, 2007 – My first complaint is that DAVIS only recognized 5/6th of the property. WHY is that 6/6 makes the total property in dispute not 5/6 and that has got many and educated attorney wondering why someone with her authority would even think of signing a document with FALSE FACTS -The l/6th in question has been deemed the missing” l/6th and if you google the “Missing l/6th” you will find many articles on the unlawful acts committed regarding property that my family owned NOT MY UNCLE ROGER RAFFERTY!! (Continued)
YOUR NAME AND ADDRESS:

Daniel B Bingman 130 Hollywood Ave, Cuyahoga Falls, Ohio 44221

TELEPHONE NO. (330) 926-9116
This attached Affidavit must be signed by you before a Notary Public as a part of this complaint. Please mail complaint to the address shown at the top of this page.
Page Two Nature of Complaint Continued

The first question asked by myself and consulting attorneys is didn’t Justice Davis read the court record? She can only go by the court record and she obviously did not bother to read it which makes her extremely irresponsible and certainly NOT WORTHY of serving as a Justice of the Supreme Court.

image
In her majority opinion DAVIS has me moving old used rusted farm equipment that sat on our farm since 1980 when the court record clearly shows that I NEVER MOVED it or even ever touched the equipment. The equipment was moved by Danny Nub Marks of Bull River Rd in Calhoun County, a state witness in my case who was recently arrested for a DUI at three times the legal limit while in possession of loaded weapons in the car. Shirley Ball another state witness in my case also committed perjury and may be under arrest soon for making false police reports showing once and for all her unsavory and dishonest character. Google Shirley Ball, Millstone Inn and you will come up with several newspaper articles on the matter. Marks did not have permission to move all of the equipment just the brush hog which Gerald Ball who was my former employer was going to fix . If there is no record in the court record why did Davis represent the opinion to the other justices voting on the case. A fact hidden was the fact that Gerald Ball knew me well, and I was employed by him by my god given name Dan Bingman and I have the check stubs to prove it. Gerry offered me help, since our whole shift had just been laid off and I was on unemployment from his company Telecon. I had just signed a contract with CUMULUS BROADCASTING at the time of my arrest and was trying to report to my new radio show when I was arrested on felony charges that were proved to be false.

It is an interesting fact the misdemeanor I was convicted of, I was never charged with against my constitutional rights. If I had been charged with the misdemeanor I was convicted of, it would have been time barred, and Gerald B Hough would not have had a case, and that is why he had Marilyn Matheny LIE ON THE STAND about the value of the 24 year old used rusted farm equipment, so he could charge me with a felony.

Ohio authorities that have looked into the illegal extradition and my case, and have reviewed all the facts, have expressed a concern that Matheny has not been arrested and sent to prison once the evidence that F JOHN OSHOWAY SUPPRESSED was discovered and the evidence brought before the West Virginia state police. When MAJOR INGOLD refused to bring charges a complaint was filed with the US ATTORNEY and the matter was accepted and sent to the special litigations unit.

If there is no record in the court record of me touching or moving the equipment why did Davis represent the opinion to the other justices voting on the case that I moved the equipment from an adjacent 100 acre property not part of the circuit court case, not only mentioned, but definitely not true. That equipment was never on that 100 acres, which was never in the court record so where did she get that information. The 100 acres mentioned was never part of the case at all. It was suggested that DAVIS got that information from Robert Goldberg and his brief to the WVSC. Goldberg said I moved the equipment when I never touched it, so how can these facts be presented when they were not in the court record.
PAGE THREE Nature of Complaint against JUSTICE DAVIS continued.

Do I have to be the one to tell you all that you can only use testimony from the court record in deliberations, not untrue hearsay brought forward by a very irresponsible pompous Asst attorney general like Goldberg? You would think with all that law school DAVIS could comprehend the basics.

In the court record Roanna Rafferty testified to the fact that she owned the l/6th that has been hereby deemed the missing l/6th and I have to ask why that is not in the opinion. I am submitting as evidence testimony from the court record that former Chief Justice Davis obviously did not even bother to read. Included as evidence is testimony from a Roanna Rafferty who HOUGH made the jury believe was a VICTIM. Rafferty was NOT A VICTIM and Hough paid her to lie on the stand. In fact Gerry Hough brought Rafferty all the way from Florida when in actuality she had nothing what so ever to do with the case. I am also submitting as evidence a TITLE OPINION that proves Rafferty had no interest in any of the properties before the court and when Gerald B Hough convinced the jury she was a victim, truly the whole court case was tainted from that point on and should be dismissed. Hough DID NOT use due diligence as evidence fully proves, or do y’all even go by evidence down there at the Supreme court, for by the actions of Justice Davis it appears that you do not. When I recently filed a complaint against Hough all of this evidence was completely ignored. Can you explain why an office that represents the Supreme Court completely ignored this evidence and unlawfully did not accept this evidence or even acknowledge its existence against my constitutional rights? My constitutional rights were violated severely by my own defense counsel when he never informed me of my statute of limitations on a misdemeanor. Oshoway had to know, or he really is an incompetent attorney that has had over 25 complaints filed against him with the office of the ODC and he has not had one reprimand and no judgments against him. I plan on contacting every person that filed a complaint against him and discuss those issues for publication of my latest book; GILMER COUNTY-The POSTER CHILD for West Virginia’s legal hell!

I have documented more misconduct involving corrupt officials in Gilmer County than can even be believed at this point. I find it shocking that attorneys in West Virginia can break the law and have the unlawful acts sanctioned by the circuit courts and the West Virginia Supreme Courts and even the ODC.

I can now prove this nauseating discovery via court record and court documents, along with testimony, and affidavit. In her opinion Justice Davis states “That on his property near his home Roger Rafferty had ..“ IT WAS NOT HIS HOME we had an equal 3/6th shares in the property and this matter was hidden by the jury when the title was actually pulled from the land books. Even more truthfully, it was my home, since I had been living there for more than a year and Ramona Bingman was in control of 3/6th. She also testified to that effect in the court record. It appears to any reasonable person that Justice Davis did not take the time to even read the court record and the result was my entire life and career has been destroyed for her wrongdoing. Davis proved herself to be completely inept.

We were just billed at this address for back taxes for property Chief Justice Davis said in her Majority Opinion that we did not own. That is a serious situation and when brought to the attention of the
Page four Nature of Complaint against JUSTICE DAVIS continued.

Gilmer County Sheriff he threatened to have me, “Picked Up” if I were to investigate any more of, “His people!“

The threatening phone call by Metz was recorded for possible future law action, but all WV law enforcement authorities refused to look into the matter even when the sheriff Metz stated in front of witnesses that just as soon as he see’s Dan Bingman he is going to knock him out. I recently discussed this matter with the regional head of the FBI in my state. Metz is a black belt in Karate which made the matter a deadly threat, but being threatened by attorneys or public officials is widely known as common place now in Gilmer County and supported by the West Virginia ODC and Supreme Court.

Please find the billing for the back taxes included as evidence. The evidence of title opinion and back tax billings should reset the two year statute on the complaint according to a phone meeting with SKIP GARTEN in 2010, since all evidence being presented in this complaint is NEW EVIDENCE that has been discovered since the court case. Also find a CD which was a recording made at Lemon Equipment 18 months before the trial in which the appraiser for Lemon Equipment, John Lemon actually gives the total value of the old used rusted 24 year old farm equipment as $390.00 – Matheny LIED about the value to a grand jury in March of 2003 and told Gilmer County authorities that the equipment had a value of $2498.00 which got me indicted on a GRAND LARCENY charge that turned out to be false. If the JIC is going to condone these types of actions and endorse the misconduct of then Chief Justice Davis, well then the people of West Virginia need to be informed of a possible very corrupt situation in their state.

But what I really want some attention brought to is the matter of the statement in the majority opinion where Davis says I was sent to PRISON for a misdemeanor charge which greatly has affected my 30 year broadcast career since this information is widely available on the internet. Since when are people sent to prison for misdemeanors and why would Davis mention that in official documents.

Davis has brought great harm to myself by not taking facts from the court record and would be advised to read the dissenting opinion authored by Justice Albright and endorsed by Justice Starcher who see the situation the same as i do.
December 7th 2011

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Two other justice did not agree with DAVIS when the final decision was made after languishing in the West Virginia Supreme Court all of 2006 and most of 2007.
654 S.E.2d 611

No. 33299 _     State of West Virginia v. Daniel B. Bingman
Albright, Justice, dissenting:

I respectfully dissent from the opinion of the majority of this Court. Indeed, as the majority recognizes, this Court’s decision in State v. Boyd, 209 W.Va. 90, 543 S.E.2d 647 (2000), specifically governs this case. However, in my judgment, Boyd is unabashedly wrong. Prior to Boyd, this Court had declared explicitly as follows:

Where, in a criminal prosecution, a conviction for assault and battery is had under an indictment charging the defendant with the commission of a felony, under Code, 61-2-9, which indictment was not returned within one year after the offense charged in the indictment was committed, the conviction is barred under Code, 61-11-9, and is void. . . .

Syl. Pt. 6, in part, State v. King, 140 W.Va. 362, 84 S.E.2d 313 (1954) (emphasis supplied). The King precept remained steadfast and was applied in State v. Leonard, 209 W.Va. 98, 543 S.E.2d 655 (2000), a decision filed by this Court on the same day Boyd was filed. In Leonard, this Court stated: “Our decision in King joined an overwhelming majority of courts that hold a defendant cannot be convicted of a lesser offense upon a prosecution for a greater crime commenced after the statute has run on the lesser offense.” 209 W.Va. at 101, 543 S.E.2d at 658.

Despite the King assertion that a conviction is void under the identified circumstances, the Boyd decision created an exception which permitted a conviction to stand where the defendant requested an instruction on the lesser-included offense. Specifically, syllabus point three of Boyd provides as follows: “When a defendant is not indicted within one year of the date on which an offense is committed but requests the circuit court to instruct the jury on a time-barred lesser included offense, the defendant by that act waives the statute of limitations defense contained in W.Va.Code § 61-11-9.” (Emphasis supplied). The Boyd Court reasoned that “[t]o hold otherwise would allow defendants to sandbag trial judges by requesting and approving an instruction they know or should know would result in automatic reversal if given.” 209 W.Va. at 94, 543 S.E.2d at 651.

There is merit to that argument regarding legal sandbagging to the extent that the decision to request consideration of a lesser included offense could have been utilized as a trial tactic, with a defendant essentially hedging his bets by seeking the benefit of conviction of a lesser included offense rather than a felony, with the secondary plan to attack the conviction on a statute of limitations claim should the jury take the bait. In that situation, as recognized by Boyd, a defendant would essentially be petitioning for consideration of the lesser included offense and thereafter seeking reversal based upon his own invitation. Therein lies the problem identified in Boyd. The failing in Boyd is not in its identification of the issue but rather in its resolution.

The underlying inconsistency between introducing the possibility of conviction on a lesser included offense and thereafter professing the illegality of the conviction under the statute of limitations has been recognized by a myriad of courts dealing with this situation. In People v. Nunez, 745 N.E.2d 639 (Ill. App. 2001), for instance, the court observed that “asking the trial court to consider a lesser included offense might generally be considered a trial tactic[.]” 745 N.E.2d at 646. However, “when that tactic includes a decision to waive the statute of limitations, the record should reflect that the defendant consulted with defense counsel about the decision to waive the statute of limitations and agreed to the waiver.” Id.

[W]hen the statute of limitations has expired on that lesser included offense, the trial court may find defendant guilty of that lesser included offense only when the decision to submit the lesser included offense to the trial judge for consideration and thereby waive the statute of limitations is a product of the defendant’s informed consent. The right to waive the statute of limitations is the defendant’s right.

Id. (emphasis supplied).

This same principle was acknowledged in People v. Brocksmith, 604 N.E.2d 1059 (Ill. App. 1992). “While the proffering of jury instructions might generally be considered a trial tactic, when that decision includes a decision whether to waive a statute of limitation, the defendant must be consulted.” 604 N.E.2d at 1066. The Brocksmith court specified that “[t]he right to waive the statute belongs to the defendant and should not be assumed from the action of counsel in this situation.” Id. (emphasis supplied). An additional element in Brocksmith was the recognition that the act of waiving the protections of the statute of limitations “cannot be considered a sound trial tactic when defense counsel admittedly did not know that the period had expired. He cannot make a reasoned decision without knowing the facts. Nor can the defendant be deemed to have made a knowing waiver of the period.” Id. The Brocksmith court concluded its analysis with the assertion that “under these facts, defendant was denied his constitutional right to effective assistance of counsel.” Id.

In Cowan v. Superior Court, 926 P.2d 438 (Cal. 1996), the California court generated a comprehensive discussion of the intricacies inherent in this issue. The court initiated its analysis by examining the critical difference between waiver and forfeiture. “Over the years, cases have used the word loosely to describe two related, but distinct, concepts: (1) losing a right by failing to assert it, more precisely called forfeiture; and (2) intentionally relinquishing a known right. ‘[T]he terms “waiver” and “forfeiture” have long been used interchangeably.‘” 926 P.2d at 440. In the instance of the loss of the right to assert the statute of limitations, the correct principle was held to be waiver, rather than forfeiture. (See footnote 1)

To remove oneself from the protection of the statute of limitations, one must intentionally relinquish a known right. In Cowan, the court observed that the prosecutor was “concerned that if petitioner pleads guilty, he can later challenge the conviction in a habeas corpus petition and assert the statute of limitations.” 926 P.2d 443. The court replied that such “concern is understandable,” but that its “holding should obviate that concern. A person who waives the statute of limitations, as petitioner seeks to do here, may not later attack the conviction on the basis of that statute of limitations.” Id. The crucial issue is how the statute of limitations is waived. In that vein, the Cowan court proposed as follows:

To avoid the problem that arose in this case, we remind trial courts and prosecutors that whenever a defendant seeks to plead guilty to, or a court considers whether to instruct the jury on, a lesser offense, they should determine whether there may be a problem with the statute of limitations regarding that offense. If so, the court should elicit a waiver of the statute as a condition of the guilty plea or giving the instruction. This should be an easy process. The record need merely reflect in some fashion that the defendant is aware that the offense is, or might be, time-barred, and the defendant has waived the statute of limitations.

Id. at 443-44. Quite simply, “[t]he court need merely inform the defendant in some fashion that the charge is, or may be, time-barred, and elicit a simple waiver of the bar.” Id. at 441.

In a concurrence in Cowan, Justice Baxter further elucidated the discussion by agreeing with the majority’s “conclusion that a defendant ought to be able to waive the statute of limitations and, with the prosecutor’s consent, plead guilty to a time-barred lesser offense where the waiver is knowing, intelligent, and voluntary, is made for the defendant’s benefit and after consultation with counsel,” subject to the limitations of the majority opinion, and where the waiver does not handicap the defense of contravene a public policy. Id. at 444, Baxter, J., concurring.

In another concurrence, Justice Chin observed that “[t]o allow defendants to lose the protection of the limitation accidentally could mean that persons could languish in prison under judgments that could not have occurred had they merely thought of the statute of limitations in time.” Id. at 445, Chin, J., concurring (emphasis supplied).

In addition to being fair, requiring an express waiver of the statute of limitations makes practical sense. Unlike a forfeiture rule, which would imply a waiver on a silent record, requiring an express waiver would ensure a fully developed record. When a defendant seeks to plead guilty to, or have the court instruct on, a time-barred offense, the court, with the assistance of the prosecutor, should take a simple waiver. That way the record is protected. A defendant who expressly waives the statute of limitations cannot later claim he did not know of it. The forfeiture rule would leave the record undeveloped. Whenever the defendant was represented, i.e., most of the time, the defendant could later claim he did not receive effective assistance of counsel, a claim which would be plausible most of the time, meritorious much of the time, and difficult to disprove all the time.

Id. The concurrence recognized the very likely potential for an ineffective assistance of counsel claim and the ability, if not responsibility, of a court to avoid that probable result by straightforward action during the early stages of the proceedings.

If a represented defendant pleads guilty to a time barred offense and thereby forfeits the statute of limitations, but later claims counsel was ineffective, on what basis could a court deny relief? Suppose the defendant requests and receives an instruction of a time barred lesser offense and is convicted of the lesser offense. Later he files a petition for writ of habeas corpus, claiming his attorney never discussed the statute of limitations with him, and if he had known the lesser offense was time-barred, he would never have agreed to requesting the instruction. When the record is silent, the claim would be credible. It would have to be litigated and would often be found meritorious. On the other hand, a simple waiver on the record would settle the matter.

Id. at 445-46. The concurrence explained that “a forfeiture rule would lead inevitably to the development of an entirely new jurisprudence. . . . A new subspecialty of ineffective assistance of counsel claims would arise. That development would be neither desirable nor necessary. The simple expedient of taking a waiver will avoid the problem. A silent record aids no one.” Id. at 446.

An identical conclusion was reached in State v. Kerby, 156 P.3d 704 (N.M. 2007), wherein the New Mexico court held: “Based on our review of the various approaches, we hereby adopt the waiver approach and hold that the statute of limitations is a substantive right that may only be waived by a defendant after consultation with counsel, and only if the waiver is knowing, intelligent, and voluntary.” 156 P.3d at 709. The Kerby court rejected the forfeiture approach not only because the protection should not be unintentionally lost but also because the forfeiture rule is “an exercise in futility.” People v. Williams, 981 P.2d 42, 45 (Cal. 1999). As the Williams court explained:

Defendants would usually gain indirectly by claiming ineffective assistance of counsel what a forfeiture rule would prevent them from gaining directly. A forfeiture rule would merely add a step to the litigation. Only those who admitted their guilt right away and did not request an attorney could never gain relief.
Id.

The Kerby court reasoned that “if we adopted the forfeiture rule in the instant case, Defendant would have a compelling ineffective assistance of counsel claim because he would not have been convicted but for his attorney’s failure to raise the statute of limitations defense.” 156 P.3d at 710.

In jurisdictions with a forfeiture rule, in numerous cases involving similar facts, courts have granted post-conviction relief outright on the basis of ineffective assistance of counsel or have remanded for an evidentiary hearing on the issue. Thus, if we adopted the forfeiture rule, we would expend judicial (and executive) resources addressing Defendant’s ineffective assistance of counsel claim and ultimately delay the inevitable vacating of Defendant’s convictions.

Id. (Citations omitted.) The attorney for the defendant in Kerby admitted that he failed to consult with the defendant about the statute of limitations because he did not recognize the issue. The court found that the defendant “did not knowingly, intelligently, and voluntarily waive this defense after consulting with his counsel” and vacated the defendant’s convictions. Id.

The United States Supreme Court addressed this issue in Spaziano v. Florida, 468 U.S. 447 (1984), and held that a defendant in a capital case may be required to waive the statute of limitations as a condition to having the trial court instruct the jury on a lesser included offense. The Court grappled with the issue of whether a defendant is entitled to the benefit of both a lesser included offense instruction and the defense of an expired period of limitations. The Court explained:

If the jury is not to be tricked into thinking that there is a range of offenses for which the defendant may be held accountable, then the question is whether Beck [v. Alabama, 447 U.S. 625 (1980)] requires that a lesser included offense instruction be given, with the defendant being forced to waive the expired statute of limitations on those offenses, or whether the defendant should be given a choice between having the benefit of the lesser included offense instruction or asserting the statute of limitations on the lesser included offenses. We think the better option is that the defendant be given the choice.

Id. at 456. “In this case, petitioner was given a choice whether to waive the statute of limitations on the lesser offenses included in capital murder. He knowingly chose not to do so.” Id. at 457. The trial court has explicitly detailed the statute of limitations issue directly to the petitioner, asking if he understood the ramifications of his decision, as follows:

THE COURT: Do you understand that while the statute of limitations has run on the Court submitting to the jury lesser included verdicts representing the charges of second-degree murder and third-degree murder, manslaughter, that you who has the benefit of the statute of limitations can waive that benefit and, of course _ and then have the Court submit the case to the jury on the first-degree, second-degree, third-degree and manslaughter.

If you don’t waive the statute of limitations, then the Court would submit to the jury only on the one charge, the main charge, which is murder in the first degree, and the sentencing alternatives are as [defense counsel] stated them. Do you understand that?

MR. SPAZIANO: Yes, your Honor.
Id. at 457 n. 6. The Supreme Court found that, under those circumstances where the defendant understood the consequences of his actions and refused to waive the statute of limitations, the trial court did not err in refusing to instruct the jury on the lesser included offenses.

The Boyd declaration, and consequently the conclusion of the majority herein, is contrary to the reasoned methodology employed by courts addressing this critical criminal right. Boyd dictates that the very act of seeking the lesser included instruction is a forfeiture of the rights afforded to a defendant under the applicable statute of limitations. End of inquiry. This restricted view fails to acknowledge that the protections afforded by the statute of limitations in this instance should not be deemed to have been abandoned in the absence of a knowing, voluntary, and intelligent waiver. Moreover, the ramifications of the application of the narrow Boyd rule conflict with the basic concepts of judicial economy. As recognized by several cases above, the potential for ineffective assistance of counsel claims is overwhelming where the Boyd rule is applied. Without the informed consent of the defendant, counsel’s decision either for or against waiver could ultimately result in a claim of legal malpractice. The predictions of the Williams court, examined above, would then come to fruition, and the forfeiture approach would properly be viewed as “an exercise in futility” which simply and unnecessarily “add[s] a step to the litigation.” 981 P.2d at 45. Whether viewed from the broad perspective of the fundamental rights of a criminal defendant or the more narrow determination of effective judicial management, the rule adopted by Boyd is defective. I therefore respectfully dissent from the application of the Boyd rule in this case, and I would reverse the Appellant’s conviction.

I am authorized to state that Justice Starcher joins in this dissenting opinion.

———————————————————————

Footnote: 1
See Potesta v. U.S. Fidelity & Guar. Co., 202 W.Va. 308, 315, 504 S.E.2d 135, 142 (1998) (identifying components of establishment of waiver, including demonstrating that party has intentionally relinquished known right.); Hoffman v. Wheeling Sav. & Loan Assn., 133 W.Va. 694, 713, 57 S.E.2d 725, 735 (1950) (“ ‘A waiver of legal rights will not be implied except upon clear and unmistakable proof of an intention to waive such rights.‘ ” (Citation omitted)). Hoffman also instructs that “[t]he burden of proof to establish waiver is on the party claiming the benefit of such waiver, and is never presumed.” (Citation omitted); see also Dye v. Pennsylvania Cas. Co., 128 W.Va. 112, 118, 35 S.E.2d 865, 868 (1945).

GFP – 12.07.2011
Opinions | Commentary | G-LtE™ | G-Comm™(4) CommentsPermalink

~~~ Readers’ Comments ~~~

Several different Gilmer County public officials, but especially Gerry Hough committed crimes,to cover up the facts of this case and all should be held accountable, and here it is all in black and white.

By Conservative Citizen  on  12.07.2011

Don’t expect the WV State Bar to do anything with a complaint against a lawyer unless there has been wide press coverage to make it impossible to sweep the issue under the rug. The Bar protects its own like any group empowered to self-regulate. A lawyer can plunder an estate, lie, cheat, steal, over-bill for work, bill for work which was not done or was unnecessary, and nothing will be done about it by the Bar. Not all WV lawyers are dishonest, but we have too many who will do anything to line their pockets. If we want to move WV ahead with its legal system we should adopt what was done in Iowa, Kentucky, and Connecticut(http://www.Halt.org) with their lawyer discipline systems. I bet that without too much effort we could cite examples of how lawyers close to home have ripped off helpless citizens.

By Hap Foster, Wood County  on  12.07.2011

To HAP:

When comments such as yours are submitted, and is shared with the many readers of the GFP the whole system WORKS.

And if we want to EXPOSE a GOOD EXAMPLE of: A lawyer can plunder an estate, lie, cheat, steal, over-bill for work, bill for work which was not done or was unnecessary, and nothing will be done about it by the Bar…

We have to look no further than the Butcher and Butcher law firm and the AJ WOOFTER ESTATE & Rosa Belle Gainer Cunningham their dishonest employee that was CAUGHT back dating checks to give the appearance of compliance.

We can prove wrongdoing six ways to Sunday and when we delivered box after box with hundreds documents to Bill Martins office….it was burned down shortly thereafter.

I remember that day well because it was hundreds of pages of documents and I bought Bills secretary Lisa flowers and really went all out for all the hard work they did.

I have been talking to reporters trying to get National Press. What I was told about the WV JIC was…

“If you think the office of disciplinary counsel is corrupt, you haven’t seen anything yet; the Judicial Investigation Commission is the most corrupt agency down there in Charleston!“

I believe that man will prove to be 100% correct.

By TO HAP  on  12.07.2011

One comment

  1. Really what we need are some CROOKED COUNTY Tee shirts!

    I think we should get the B&B law firm that Ferrari that R Terry Butcher feels we owe him, and some tee shirts and even some for the Butcher Bitches themselves! Yay! It’s Christmas!

    “I BROKE BAD on the CalPatty Press!” …for Lizzie and Lexie!
    “I’m just a Butcher Bitch too! In fact, I am the original Mother Fucker!” …for Nasia!
    “I’m the Bitcher of the Butchers!” … for Timothy B Butcher!
    “I’m THE CROOK from Crooked County that lives down by the Crooked River!” …For R Terry
    “Have another drink Princess Di!” …. for Diana L Butcher!

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