West Virginia Supreme Court sides with judge over attempt to seek testimony in Slow Down program (2024)

An effort by Pleasants County Prosecuting Attorney Brian Carr and other attorneys to require Circuit Judge Tim Sweeney to testify as to his conversations with state lawyer and judicial investigators regarding Carr’s involvement in the former Slow Down for the Holidays program was rejected by the state Supreme Court of Appeals Friday. (File Photo)

CHARLESTON — An attempt by attorneys under investigation in the now-defunct St. Marys Slow Down for the Holidays program seeking records and testimony from a circuit court judge was blocked by the West Virginia Supreme Court of Appeals.On Friday, the state’s highest court granted a writ of prohibition sought by 3rd Judicial Circuit Judge Tim Sweeney to block an order from the Hearing Panel Subcommittee (HPS) of the state Lawyer Disciplinary Board on behalf of several attorneys and Pleasants County Prosecuting Attorney Brian Carr that would have required Sweeney to appear for a deposition and supply certain documents as cases against those attorneys being brought by the Office of Disciplinary Counsel (ODC) are pending.Carr, former Pleasant County assistant prosecuting attorney Paul Marteney and trial lawyers Harley Wagner, Justin Raber, Jay Gerber Jr., Andre Richardson and Jordan West all have pending cases before the HPS for their roles in the St. Marys Police Department’s Slow Down for the Holidays program.Carr and Marteney remain under state and federal investigation for their role in the program that began in 2008 when Carr was a municipal judge for the City of St. Marys. The Slow Down program would dismiss minor traffic infractions in the months prior to Christmas each year in exchange for donations of $50 gift cards or the equivalent of $50 in toys. The Pleasants County Magistrate Court and the Pleasants County Sheriff’s Department became involved in the program in 2018 after Carr took office as prosecuting attorney, when he and Marteney began to dismiss certain misdemeanor charges, such as driving under the influence, in exchange for the donation of gift cards and sometimes cash to the Slow Down program.The cases against the seven attorneys were consolidated into one to simplify discovery requests. In a separate case, attorney Wells Dillon was admonished by the HPS and ordered to pay proceeding costs and undergo additional continuing education courses in ethics.According to Justice C. Haley Bunn who penned the order granting the writ, Sweeney informed the ODC and the Judicial Disciplinary Counsel (JDC) about the county’s involvement in the Slow Down program following concerns raised by attorney Judith McCullough.According to McCullough, Carr had offered at the end of 2020 to dismiss charges against McCullough’s client – who had been charged with driving under the influence and possession of a controlled substance – in exchange for $1,500 in either cash or gift cards to the Slow Down program. Despite McCullough advising her client not to accept the offer, the client accepted, made the payment and the charges were dismissed. McCullough raised concerns about the Slow Down program to fellow attorneys, who voiced ethical issues about the program.“Other attorneys cast doubt on the ethical propriety of the program, and at least one suggested Attorney McCollough speak to a judge,” Bunn wrote. “Attorney McCullough then contacted Judge Sweeney, the only circuit judge in Pleasants County, to express her reservations about the program and disclose her actions regarding (her client’s) case. Attorney McCullough had known Judge Sweeney in a professional capacity for several years.”Bunn said that Sweeney did not file a formal complaint with the ODC or the JDC, with both agencies conducting their own investigations. In 2021, Pleasants County Magistrates Randy Nutter and Lisa Taylor resigned and agreed never to seek public office again following admonishment by the Judicial Investigation Commission (JIC) for their roles in accepting dismissal of cases in exchange for donations to the Slow Down program.Both Carr and Marteney were charged in 2021 by the Investigative Panel of the Lawyer Disciplinary Board with multiple violations of the Rules of Professional Conduct. Carr alone was accused of 178 violations in 21 separate counts. State investigators said Carr and Marteney’s selection of only a few misdemeanor cases in exchange for monetary donations constituted a “bribe.” The cases against Carr and Marteney were paused in 2022 due to a federal investigation by the U.S. Attorney’s Office for the North District of West Virginia. Marteney’s law license remains under suspension from a separate ODC case.The ODC began issuing charges against defense attorneys who accepted the Slow Down deals from Carr and Marteney at the end of 2022. The attorneys are accused of violating the Rules of Professional Conduct that govern the behavior of lawyers in the state. The ODC investigates attorneys, while the JIC investigates justices, judges and magistrates.In March 2023, a motion by Carr for the HPS to depose Sweeney, as the complainant, was granted. The ODC moved for the HPS to reconsider the motion given that Sweeney did not file the formal complaint. HPS issued a second order, naming Sweeney and McCullough as the complainants. Sweeney, the ODC and the JDC filed their own motions to quash a subpoena from Carr. The HPS denied all three motions and filed a memorandum opinion stating that the judicial deliberative privilege afforded to judges did not apply in the case because Sweeney was not acting in his capacity as a judge when he contacted the ODC and JDC. Justice Bunn disagreed.“The HPS clearly erred when it ordered Judge Sweeney to submit to deposition and produce documents in the underlying disciplinary proceeding … we find that the testimony and records sought by the subpoena are protected by the judicial deliberative privilege,” Bunn said.“Attorney McCullough’s testimony in her deposition and sworn statement to the ODC establish that she spoke with Judge Sweeney because of his position as a judge,” Bunn continued. “Consequently, requiring Judge Sweeney to testify regarding his decision to report the attorney conduct pursuant to his judicial obligation … would invade ‘an official’s good-faith decision-making prerogatives.'”Steven Allen Adams can be reached at sadams@newsandsentinel.com.

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West Virginia Supreme Court sides with judge over attempt to seek testimony in Slow Down program (2024)

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