IN THE CIRCUIT COURT OF RITCHIE COUNTY, WEST VIRGINIA
STATE OF WEST VIRGINIA,
Case No. 13-F-7
Judge Timothy L. Sweeney
John Manis Richards,
MOTION TO DISMISS INDICTMENT
Now comes the Defendant, JOHN MANIS RICHARDS, and moves this Honorable Court pursuant to Rule 12(b)(2) of the West Virginia Rules of Criminal Procedure, to Dismiss the Indictment in the above styled matter, and enter an Order dismissing the indictment, in its entirety, with prejudice.
The Defendant offers proof with this Motion that the indictment in this matter was fraudulently obtained, by prosecutorial misconduct along with the deliberate false or misleading testimony to the grand jury by WV State Trooper, Clinton Edward Boring that prejudiced the grand jury’s decision to indict the Defendant.
- Defendant was charged by criminal complaint on November 15, 2012.
- Judith A. McCullough was the Ritchie County Prosecuting Attorney at that time.
- Steven A. Jones, took office as the Ritchie County Prosecuting Attorney on January 1, 2013.
- Counsel for the State, Steven A. Jones presented the case to the Ritchie County grand jury on June 3, 2013, and the grand jury found a true bill against the defendant.
- Prosecutorial misconduct occurred in the case when Counsel for the State, (Prosecutor Steven A. Jones) knowingly and willingly allowed deliberate perjury to be offered to the grand jury by Trooper C. E. Boring for the sole purpose of obtaining an indictment.
- The Defendant, on the 11th day of May, 2015 by and through his attorney, George J. Cosenza, filed Motion To Recuse Steven A. Jones, the Prosecuting Attorney of Ritchie County. The Court failed to act or even set a hearing date on the Defendant’s Motion. However, Prosecuting Attorney, Steven A. Jones made his own request to be recused from the case and this Court filed on June 18th, 2015 a Request for Appointment of Special Prosecutor.
- Thereafter, M. Paul Marteney, of 301 Court Lane, St. Marys, WV 26170 was assigned as Special Prosecuting Attorney for this Ritchie County Circuit Court Case.
- Upon examination of the information set forth in this Motion and information found on the Official Record of this Case, the Defendant prays the Court will find that prosecutorial misconduct along with perjured testimony presented to the grand jury by Trooper C. E. Boring prejudiced the grand jury’s decision to indict the Defendant.
As good cause for this Motion, the Defendant states the following:
- In the Indictment proceeding in this matter, Trooper Boring presented information to the grand jury about a gun that was allegedly stolen from the Evidence Room at the Harrisville State Police Headquarters, he made the following direct and misleading statement to the grand jury:
“What they did, him and John Manis Richards, took that gun to Big Springs post office. I don’t know if you know where Big Springs is out on 16, and put it in that post office box trying to throw us off, is what Estep said.” – -Testimony of Trooper C. E. Boring, grand jury transcript page15 lines 23, 24, & 25 and page 16, lines 1 & 2.
A copy of the Transcript of the grand jury proceeding in this matter is attached hereto as “Exhibit A.”
- Trooper C. E. Boring knowingly provided false and incorrect information to the grand jury regarding the actual content of a statement Mr. William Willis Estep had provided to Harrisville State Troopers, C. S. Jackson and J. L. Brewer on November 15, 2012.
- Mr. Estep’s statement was to the contrary of what Trooper C. E. Boring falsely presented to the Ritchie County grand jury. On page 8 of Mr. William Willis Estep’s statement to police, Mr. Estep claimed he did not know where or what County the gun in question was dropped in, other than claiming: “…they was gonna drop them in a mail box and let the postmaster find the revolver.”
- Furthermore, Mr. Estep clearly answered a direct question from Trooper Jason Brewer were Brewer asked Mr. Estep: “Do you know what County he dropped the pistol?” Mr. Estep answered: “No sir…” Statement of William Willis Estep II on 11/15/2012 page 8. A copy of Mr. Estep’s Statement is attached hereto as “Exhibit B.”
- Defendant respectfully wishes to remind the Court that a Motion had been filed with this Court on a pervious date to dismiss an indictment in the Case of State of West Virginia vs. David Peter Weekley 14-F-28, which also involved perjury being submitted to a Ritchie County grand jury in that matter. In that case the perjury also involved a member of the Harrisville State Police and the Prosecutor involved in that case was none other than Steven A. Jones. This Defendant feels an investigation into the matter of Prosecutorial Misconduct in cases that Steven A. Jones is involved with would uncover a bad faith standing of misconduct by Prosecutor Jones that represents a systemic problem of misconduct and lack of integrity of Prosecutor Jones and members of the Harrisville State Police.
- In the June 3rd, 2013 indictment proceeding, information by Trooper Boring was presented to the grand jury where the Harrisville State Police Office was broken-into and various forms of drugs and other items were stolen from an evidence room in the State Police Office.
- Trooper Boring gave further testimony to the grand jury that 13 days after the Harrisville State Police break-in had occurred, a lady named Kim Jacobs called Trooper Jason L. Brewer and reported that her daughter’s boyfriend, William “Billy” Estep broke-into a State Police Office somewhere and stole drugs and brought the drugs to where Mrs. Kim Jacobs was staying in Parkersburg, WV with her daughter Brandy Jacobs.
- Although, Kim Jacobs never mentioned an address where she was staying with her daughter Brandy Jacobs in Parkersburg, Trooper Boring described this address to the grand jury; “at 820 Williams Highway which is located in the Parkersburg area of Wood County.” A copy of Kim Jacobs Statement is attached hereto as “Exhibit C.”
- Counsel for the State allowed Trooper Boring to give misleading testimony to the grand jury that illustrated the address where Kim Jacobs was staying with her daughter and observed Mr. William Willis Estep with a black bag containing drugs was 820 Williams Highway, Parkersburg, West Virginia, with Trooper Boring giving further misleading information to the grand jury that the Residence was the Residence of John Manis Richards and Trooper Boring also stated “This residence is owned by John Manis Richards.”
- More pacifically Counsel for the State suborn perjured testimony from Trooper C. E. Boring where Trooper Boring gave testimony to the grand jury that the property at 820 Williams Highway, Parkersburg, West Virginia was owned by defendant, John Manis Richards. Grand jury transcripts page 12 lines18 & 19 has Trooper Boring testifying “This residence is owned by John Mannis Richards.” (This was a misleading statement to the grand jury) of which Counsel for the State had information available to him proving Trooper Boring gave this perjured testimony to the grand jury but Counsel for the State failed to inform the grand jury of the perjury.
- On November 14, 2012, State Police obtained and executed a search warrant that clearly outlined the residence of William Willis Estep as being at 820 Apt. # 1 located on Williams Highway in Wood County. This solid information of Apartment # 1 being the residence of Mr. Estep was intentional left out by Trooper C. E. Boring while he gave the false information to the grand jury that Mr. Estep was seen with a bag of drugs by witness Kim Jacobs at 820 Williams Highway, which Trooper Boring also falsely presented testimony to the grand jury that John Manis Richards was the owner of the residence at 820 Williams Highway. Also, Counsel for the State had information available to him proving the Defendant did not own the residence at 820 but failed to inform the grand jury of the perjury. Trooper C. E. Boring further presented false and misleading testimony to the grand jury when he stated;
“Through that statement from Kim Jacobs a search warrant through Wood County was obtained. Later that day we served a search warrant on that residence in Wood County. – – Trooper C. E. Boring Testimony – Transcript from grand jury page 12, lines 22 – 25
This was false and misleading testimony to the grand jury regarding serving a search warrant on that residence in Wood County, as a Search Warrant was obtained in Wood County which described Apartment # 1 and being the residence of Mr. Estep. However, police did not serve a search warrant on the residence of the Defendant, John Manis Richards.
State Police lead by Trooper Jason L. Brewer did however, kick in the front door of the Defendant, John Manis Richards’s father’s home and ordered the Defendant to the floor at gun point and search his person and the residence and outbuilding, but no search warrant was obtained from Wood County for the Defendant’s or his Father’s residence, as evidence no search warrant was produced to Defendant or his Father nor can a search warrant for the Defendant residence be found on the Record.
Ritchie County Grand Jury Transcripts pg. 12, lines 18 & 19. “This residence is owned by John Manis Richards.” This perjured statement to the grand jury by Trooper Boring was known to be false by Prosecutor Jones as both the State and Trooper Boring had information available to them that clearly showed the statements made by Trooper C. E. Boring were false. Please see: Transcript pg. 12, lines 17 & 18, of grand jury proceedings heard on the 3rd day of June, 2013, at the Ritchie county Courthouse, Harrisville, West Virginia, Case # 13-F-7, 8. Please be advised that the Defendant, John Manis Richards has never owned a residence at 820 Williams Highway, Parkersburg, WV as the Counsel for the State allowed to be presented to the grand jury nor has the Defendant, John Manis Richards ever owned any residence or real-estate in Parkersburg or any other City or County around Parkersburg, WV.
Regardless of the source of the information being presented to the grand jury, the State has access to multiple databases that would reveal the fact that Defendant, John Manis Richards does not own property in Wood County, West Virginia as falsely presented to the grand jury by Harrisville State Police Sgt. C. E. Boring.
Trooper C. E. Boring was misleading the grand jury while interweaving facts with false testimony to the grand jury. Here is an example of Trooper Boring’s interweaving of fact and fiction with his mislead testimony:
“…that residence is located at 820 Williams Highway which is located in the Parkersburg area of Wood County. They began to perform surveillance on this residence. This residence is owned by John Manis Richards. He has apartments around this residence that William Estep and his girlfriend lived in.” Through that statement from Kim Jacobs a search warrant through Wood County was obtained. Later that day we served a search warrant on that residence in Wood County.” – – grand jury transcripts page 12, lines 16 – 25
- There was several parts of that testimony to the grand jury that both the State and Trooper C. E. Boring knew was false and misleading as both Prosecutor Jones and Trooper Boring had information available to them that the Defendant did not own the residence at 820 and the Defendant does not own or have an apartment that; “William Estep and his girlfriend lived in.” Also, both the State and Trooper C. E. Boring knew that a search warrant was not obtained through Wood County on the Defendant’s residence and both the State and Trooper Boring knew a search warrant was not served on the Defendant John Manis Richards’ residence. However, Counsel for the State allowed the misleading information to be presented to the grand jury that seemed to indicate Defendant John Manis Richards’s residence was served with a search warrant obtained from Wood County. This misleading testimony was clearly provided to prejudice the grand jury to indict the Defendant.
- In yet another outright submission of intentional perjury presented to the grand jury by Trooper C. E. Boring was where Trooper Boring started to tell the truth about what Kim Jacobs actually said in her statement, but quickly realized or remembered that Mrs. Kim Jacobs’ story just did not corroborate Mr. Estep’s story. So, Trooper C. E. Boring knowingly and willingly presented perjured testimony to the grand jury by testifying that Mrs. Kim Jacobs has made the statement that her daughter’s boyfriend and also the father of her daughter’s children, had come home late on the 31 and stated that – – or early morning hours of the 31st, stated that he had a bag that contained some drugs in it, and he comes into the residence and goes into the back room. The daughter tells the mom, “Mom, you got to be quiet about this because he just said he broke into a state police office somewhere.” Trooper C. E. Boring perjured himself when he said; “or early morning hours of the 31st,” as Trooper C. E. Boring had in his possession an audio and written statement taken on November 14, 2012. This audio and written statement by Kim Jacobs clearly gives evidence that Trooper Boring committed yet another instance of premeditated perjury in his goal to obtain an indictment in the case.
- In Mrs. Kim Jacobs November 14, 2012 statement page 6 she was asked if Mr. Estep left at any time between Monday and Wednesday and Mrs. Jacobs said: No, he was just on the phone a lot. Mrs. Jacobs was asked if Mr. Estep “…stayed in the house all, the whole time?” Mrs. Jacobs said: Yes. In Mrs. Kim Jacobs’s statement she agreed that Mr. Estep was home from Monday to Wednesday which would have been Monday October 29, Tuesday October 30, and Wednesday October 31, 2012. Mr. Estep stayed in the house the whole time according to Mrs. Kim Jacobs’s audio statement of November 14, 2012.
- Therefore, with Prosecutor Jones having both the audio and written statement of Mrs. Kim Jacobs available to him before and during the June 3rd 2013, grand jury presentation, Counsel for the State knowingly and willingly failed to inform the grand jury of the perjury present to them by Trooper C. E. Boring, which again prejudiced the grand jury to indict Defendant.
- Another instance where Prosecutor Jones and Trooper C. E. Boring conspired to knowingly and willingly present false testimony to the grand jury is located at page 20 of the grand jury Transcript line # 19. In that perjured testimony, Trooper C. E. Boring gave answer to a specific grand juror’s question, where the Juror ask: “Who was the truck owned by? Trooper C. E. Boring replied: “John Manis Richards.” Again both the State and Trooper C. E. Boring had information available to them proving the truck allegedly used in the crime was not owned by Defendant, John Manis Richards. Matter of fact WV-DMV records prove that Defendant has not owned or had registered to him any kind of truck for well over 8 years. But again Prosecutor Jones failed to inform the grand jury of the perjury being knowingly and willingly presented to them by Trooper C. E. Boring.
- The grand jury transcripts page 13 lines 6 – 20, Trooper C. E. Boring gave lengthy testimony to the grand jury regarding a light colored 4 door truck driving by his Harrisville State Police Headquarters which was caught on the video surveillance equipment at the Headquarters shortly before the power was interrupted.
- Current Counsel for the State, Mr. M. Paul Marteney has still not as of the filing of this Motion, provided the Defendant full discovery regarding all video surveillance footage of the Harrisville State Police Security Video. Pursuant to testimony to the grand jury that was provided by Trooper Boring;
- “We brought up – the communication guy comes up and burns that entire day’s video onto a DVD for us.” Grand jury transcript page 6, lines 16 and 17.
- The Harrisville State Police Office was equipped with Motion Activated Video Surveillance Equipment. However, despite having video surveillance equipment that recorded the entire day of October 30th, 2012 (Day of alleged B&E) on a digital video recorder, DVR and then having the data saved to a DVD, Prosecutor Jones only provided a partial segment of the DVD in question to the Defendant. The segment provided to the Defendant by the State is only 37 minutes of footage. The only conclusion to be drawn over the refusal or failure of the State to provide the Harrisville State Police’s DVD of the entire day’s footage of October 30th, 2012, is that it would be harmful to the State’s case.
- Counsel for the State has withheld the video footage from defense even knowing a trial was docketed to take place in the case on numerous occasions in 2013, 2014, and 2015 which has caused the Defendant to forfeit his right to a fast and speedy trial due to Counsel for the State continued prosecutorial misconduct in denying discovery in a timely manner in the case.
- The Defendant claims that Counsel for the State conspired with Trooper C. E. Boring to give misleading facts in testimony to the grand jury of just what the Harrisville State Police Security Video actually showed or did not show regarding the truck in question. Defendant also wishes to inform the Court that the Harrisville State Police Security Video/DVD is considered to be exculpatory in nature by the defense.
- Also, as of the time of filing of this Motion, Counsel for the State has not provided several photographs takin by State Police of evidence at the alleged crime scene and the withheld photos may prove a breach of the Chain of Custody regarding DNA evidence which is allegedly linked to Earbuds reported to have been found in the hallway of the Harrisville State Police Detachment. Once again, the only conclusion to be drawn over the refusal or failure of the State to provide the photographs is that it would be harmful to the State’s case, and thus, is another item of exculpatory evidence that the State has failed to disclose.
- The Defendant respectfully gives evidence that the Court, Honorable Judge Timothy L. Sweeney has acted with bias toward the Defendant, John Manis Richards in this case when Judge Sweeney attempted to retaliate against the Defendant because the Defendant Filed a Complaint with the West Virginia Office of Disciplinary Counsel (ODC). This Court, Judge Timothy L. Sweeney claims that the Defendant John M. Richards has filed an ethics complaint against the Prosecutor. The Judge further made a bias statement, without investigation, claiming the Defendant has lied about the Prosecutor and a police officer and caused the Prosecutor to respond at least three times. The Judge continues to state that he believes this conduct is in violation of West Virginia Code Section 61-5-27, and the Judge, Timothy L. Sweeney has requested that the Defendant be investigated for possible violation of the criminal statute. The Defendant includes a document with evidence of bias by the Court which is attached hereto as “Exhibit D.”
- At this time the Defendant respectfully informs the Court that full discovery has still not been provided by the State and further the Defendant states he has not lied about the Prosecutor Steven A. Jones or a police officer.
- The Defendant has been and is currently acting with unbiased knowledge of documented facts and is respectfully alleging that Ritchie County Prosecutor, Steven A. Jones knowingly and willingly allowed perjury to be presented to the Ritchie County grand jury and Harrisville State Police Detachment Commander, Sargent Clinton Edward Boring committed felonious perjury during the June 3rd, 2013, presentment of the Defendant’s case to the grand jury.
- The Defendant is alleging that Trooper Boring, who was then under oath, willfully testified falsely regarding a material matter before the grand jury which was considering a felony indictment.
- In the ODC Complaint(s) filed against Prosecutor Jones the Defendant outlined various bouts of prosecutorial misconduct such as the Prosecutor acting in bad faith by continually denying pretrial discovery which caused numerous delays in the Defendant’s case. The Prosecutor’s actions of bad faith continued throughout a several year timeframe as Prosecutor Jones had intentionally rejected verbal and written requests for full discovery by at least three attorneys.
- Prosecutor Jones was deliberately withholding several portions of discovery as he knew the discovery demonstrates prosecutorial misconduct as well as perjury presented to the Ritchie County grand jury during the June 3rd, 2013 indictment process in this case.
- The Defendant’s first request for full discovery took place in June of 2013. On behalf of the Defendant, Attorney John M. Butler also made a written request for discover in early 2014 and on February 19, 2015, the Defendant’s Court Appointed Attorney, Mr. John M. Butler who was trying very diligently to obtain full discovery sent the Defendant the following two e-mails which gives evidence that Prosecutor Jones was still alluding the issue of providing full discovery.
The following is a Screen Shot of those e-mails regarding the Harrisville State Police Security Video which Prosecutor Jones had been concealing.
- These two e-mails provide evidence that Prosecutor Jones as of the e-mail date in the screen shot, still had not provided full discovery to the defense which was prejudicial to the Defendant, causing more delays in preparing and presenting his case for trial.
- Further evidence of Prosecutor Jones acting in bad faith and causing further delays in the Defendant’s case is shown with a letter dated May 11, 2015 from George J. Cosenza which is the Defendant’s current case Attorney who was hired by the Defendant in hopes to secure full discovery from Prosecutor Jones. The Defendant was having feelings that the case might not be accurately prepared and presented for trial due to prior Court appointed Attorneys failing to files Motions to Compel the State to produce full discovery.
- The following information is an abstract from a letter from Attorney, George J. Cosenza addressed to Prosecutor, Steven A. Jones:
Re: State of West Virginia vs. John Manis Richards Case No.: 13-F-7 “On April 2, 2015, and on April 30, 2015 I forwarded letters to you requesting a meeting at your office to view, and discuss all videos regarding the above cited matter. As of this date, I have not received a response from you. On April 30, 2015, I also requested that you forward an audio copy of the interview of Brandy Jacobs. If we do not received the requested info and a response from you regarding a meeting to see the videos, we are going to file a motion to compel. Please contact my office as soon as possible.”
- Please see Defendant’s “Exhibit E.” which again is a letter dated May 11, 2015, addressed to Prosecutor Jones from attorney George J. Cosenza requesting for the third time to have a meeting with the State regarding discovery that had not been provided.
- A review of the grand jury Transcript and various forms of discovery such as the West Virginia State Police Security Video gives clear evidence of criminal misconduct by Prosecutor Jones and Trooper Clinton Edward Boring, where both men knowingly and willingly allowed false and misleading testimony to be presented to the Ritchie County grand jury. Yes, (Perjury). A criminal law violation.
- In the many instances of perjury presented to the grand jury, Prosecutor Jones and Trooper Boring were acting in bad faith while painting a false picture to the grand jury which again, was designed to falsely tie the Defendant John Manis Richards to the alleged crime scene by describing a light colored four door Chevy Truck driving by the Harrisville State Police Office and Trooper Boring was testifying falsely that the truck in question was the last vehicle the video surveillance equipment picked up before power was cut to the surveillance equipment. However, the truck in question is seen in the surveillance video footage at 22:50 hours and just 7 minutes later, at 22:57 hours another vehicle enters the video footage and drives up Ford Street in the same direction, following the same path as Trooper Boring described the truck traveling. But, again Trooper Boring mislead the grand jury by saying the truck was the last vehicle the surveillance system picks up before the power was cut to the system.
- Trooper boring further falsely tied the Defendant to the truck in question, by answering a direct question from a jury member who asked:
- JUROR: “Who was the truck owned by?”
- TROOPER BORING: “John Manis Richards.”
- Please See Ritchie County grand jury Transcript of the 3rd day of June, 2013 Case #s 13-F-7&8 page 20, lines 18 and 19, for that exchange by a Juror and Trooper Boring.
- Both Prosecutor Jones and Trooper Boring had information available to them proving the light colored truck in question was not owned by John Manis Richards as both men had in their possession two photographs which were also provided to the Defendant by the State in an incomplete discovery request.
- Please see the attached “Exhibit F” being a photograph of the light colored truck they were presenting to the grand jury as the alleged truck that drove by the Harrisville State Police Office during the time in question. This photograph illustrates a license plate on the truck bearing the licenses number of (8NC 396) and that license plate number (WV-DMV Registration) indicates the truck is not owned by John Manis Richards. Prosecutor Jones and Trooper Boring again had access to several data bases at the County and State level that gave them information of who the owner of the specific truck was.
- Defendant’s “Exhibit G” is two separate photographs on a one page Exhibit, which again, said photographs, were provided by the State in the incomplete discovery process. The two photographs depict two separate but identical VIN Numbers (Vehicle Identification Number) in two separate locations on the truck in question. The VIN number describes the truck in question, but does not describe the truck being owned by Defendant, John Manis Richards. Please see WV DMV Certificate of Title to a Motor Vehicle which is attached as “Exhibit H.”
- The (WV DMV) Certificate of Title to a Motor Vehicle also describes the Truck in question but again, does not describe the Truck as being owned by the Defendant, John Manis Richards.
- Prosecutor Jones acted in bad faith by allowing Trooper Boring to mislead the grand jury with multiple false statements by claiming the truck in question was the last vehicle to drive by before power was cut, and further allowed the false testimony describing the Defendant was the owner of the truck. Again, Prosecutor Jones had information in his possession or available to him refuting the testimony of Trooper Boring. However, Prosecutor Jones continued his acts of bad faith when he made no attempt to inform the grand jury of the misleading testimony presented to them by Trooper Boring.
- The Defendant Motions the Honorable Judge Timothy L. Sweeney to Dismiss the Indictments for several reasons one in particular: Prosecutor Jones knowing and willingly prejudiced the Defendants case with noncompliance and withholding crucial parts of discovery for several years that tends to prove the defendant’s innocence.
- The biggest issues of not releasing specific portions of discovery was premeditated by Prosecutor Jones for the sole purpose of concealing what this Defendant believes is felonious official misconduct on the part of Prosecutor, Steven A. Jones and Trooper, Clinton Edward Boring something this Defendant may press forward requesting a Federal investigation into Civil Rights violations in the matter.
- Prosecutor Jones and Trooper Boring were actively involved with using their official position to allow themselves to conceal their misconduct at the price of others, not only early in the case but throughout the case.
- Anyone who has tried to conceal or knew of the misconduct regarding what this Defendant believes to be criminal activity on the part of Prosecutor Jones and Trooper Boring may also become entangled with violations of the West Virginia Rules of Professional Conduct where the rules are clear with the responsibility to report misconduct. However, some seem to be conspiring to conceal the criminal activity the Defendant has uncovered.
- MAINTAINING THE INTEGRITY OF THE PROFESSION
- Rule 8.3. Reporting Professional misconduct.
- A lawyer having knowledge that another lawyer has committed a violation of the Rules of Professional Conduct that raises a substantial question as to that lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects, shall inform the appropriate professional authority.
- A lawyer having knowledge that a judge has committed a violation of applicable rules of judicial conduct that raises a substantial question as to the judge’s fitness for office shall inform the appropriate authority.
- The Defendant is asking the Court to Dismiss, with prejudice all indictments involving the Defendant John Manis Richards which are pending in the Circuit Court of Ritchie County, West Virginia and such a dismissal of the indictments would be fair and appropriate prior to trial as a sanction for partial discovery noncompliance, perjury and prosecutorial misconduct.
- General guidance is provided by several West Virginia Supreme Court discovery cases where the violation is discovered after the commencement of trial. In Syllabus Point 2, in part, of State v. Grimm, 165 W. Va. 547, 270 S.E.2d 173 (1980), the high Court stated that “non-disclosure by the prosecution is fatal to its case where such non-disclosure is prejudicial.” The traditional appellate standard for determining prejudice involves a two-pronged analysis: “(1) did the non-disclosure surprise the defendant on a material fact, and (2) did it hamper the preparation and presentation of the defendant’s case”.
- Number (1) yes this defendant was surprised by non-disclosure on a material fact when the defendant learned of the boat load of perjury and misleading testimony that was presented to the grand jury during the indictment process.
- Number (2) yes this defendant was hampered in preparing and with trying to present his case for trial in a timely manner if a trial is even possible at all now.
- The Defendant submits as further authority to dismissed the indictment a West Virginia Supreme Court Case which allowed the dismissal of an indictment prior to trial for discovery noncompliance: In a separate and prior case that involved the Defendant’s current counsel, George J. Cosenza, Judge George W. Hill, of the Circuit Court of Wood County, dismissed the indictment in the case of State of West Virginia v. Lisa Harder, Case No. 93-F-81. However, the Prosecuting Attorney for Wood County, petitions the West Virginia Supreme Court of Appeals asking the Court to issue a Writ of Prohibition against Judge Hill, prohibiting him from dismissing the indictment in the case. In the September 1994 Term, Case No. 22441, the WV Supreme Court found that Judge Hill’s discretion was properly exercised in the case and the dismissal of the indictment was an appropriate sanction. The dismissal was based on the State’s partial noncompliance in the discovery process.
- The Defendant believes a pre-trial dismissal of the Indictments would be sound discretion of the Court. In exercising discretion pursuant to Rule 16 (d) (2) of the West Virginia Rules of Criminal Procedure, a circuit court is not required to find actual prejudice to be justified in sanctioning a party for pretrial discovery violations.
- Prejudice may be presumed from repeated discovery violations necessitating numerous continuances and delays. As in this case the Defendant was forced to ask for continuances and to go along with numerous other continuances and delays as the State was withholding discovery to cover up the State’s own criminal misconduct in the case. The Defendant was indigent for most of the case proceedings which forced the Defendant to have court appointed attorneys who failed to file motions to compel the State to produce the needed discovery. The Defendant is in possession of numerous letters and e-mails from attorneys who were attempting to get the needed discovery in a timely manner.
- The State was not hindered and did not have difficulties with obtaining discovery from the alleged Victim as the State works with the Victim, (West Virginia State Police) on a daily basis. The only problem the State was having releasing full discovery was self-preservation, as any such release would provide evidence of criminal misconduct committed by not only the State (Prosecutor Steven A. Jones) but WV State Trooper/Harrisville Detachment Commander, Clinton Edward Boring. The denial of discovery was in bad faith and geared to prejudice the Defendant’s case as well as mislead and conceal criminal misconduct by Prosecutor Jones and Trooper Boring.
- Dismissal of an indictment is an appropriate sanction when the State’s failure to comply with several discovery request is in bad faith and when the defendant has been deprived specifically of an identified right, such as the right to a speedy trial.
- The Defendant submits to the Court that information provided in this Motion, information found within the Transcript of the June 3rd Indictment, Case 13-F-7, 8 and other information found upon the Official Record of this case puts fourth facts that the Indictment was induced by misconduct, and evidence has been provided that the Indictment was also procured by fraud, perjury and corrupt means.
- An indictment is prima facie evidence of probable cause which can be overcome by showing that it was induced by misconduct. In Rose v. Bartle, 871 F.2d 331, 353 (3d Cir.1989) (grand jury indictment “constitutes prima facie evidence of probable cause to prosecute, but may be rebutted by evidence that the presentment was procured by fraud, perjury or other corrupt means”.
- As a result of Prosecutorial Misconduct, committed by Counsel for the State, the Defendant, was deprived of his Fifth Amendment Right to Due Process of Law.
- The State’s misconduct was intentional and, on numerous occasions, purposefully designed to undermine and frustrate the defendants’ right to a fair and impartial grand jury proceedings.
- Misconduct began at the inception of the West Virginia State Police’s bias investigation of the alleged burglary of the Harrisville State Police Headquarters and permeated into the grand jury proceedings leading to the defendants’ indictment.
- The State’s willingness to induce and allow the Harrisville State Police Commander, Clinton Edward Boring to knowingly and willingly provide misleading information through his own perjured testimony to the grand jury was outrageous and felonious and both Prosecutor Jones and Trooper Boring knew the testimony was perjured.
- If the Court would allowed the misconduct of perjury and the indictment to stand, it will all continue into and infect any trial regarding the matters.
- Ritchie County Prosecutor, Steven A. Jones or his predecessor has the responsibility and duty to correct what he knows to be false and elicit the truth. The Defendant filed a complaint with the West Virginia Office of Disciplinary Counsel against Prosecutor Jones, which put the prosecutor on notice of the real possibility of perjured testimony being presenting to the grand jury. However, Prosecutor Jones has failed to even inform the Court of the perjury. The Prosecutor’s duty to inform the Court is not discharged by attempting to personally lie or finesse the problem by telling the Office of Disciplinary Counsel it was merely testimony the officer believed at the time and press ahead without a diligent and a good faith attempt to resolve it. A prosecutor cannot avoid this obligation by refusing to search for the truth and pretend to be ignorant of the facts.
- The State’s reliance on inaccurate but extensive hearsay testimony regarding William Willis Estep’s prior statement presented by Trooper C. E. Boring to the grand jury was one thing, but the State clearly crossed the line when presenting and allowing Trooper C. E. Boring to provide the grand jury with felonious perjured testimony of which both the State and the Trooper knew the testimony was false and misleading.
- The Defendant notes that there is no per se ban on hearsay evidence before the grand jury. Although there is no prohibition on the use of hearsay evidence before a grand jury, the decision in United States v. Estepa, 471 F.2d 1132 (2d Cir. 1972), indicates that extensive reliance on hearsay testimony is disfavored. More particularly, the government prosecutor, in presenting hearsay evidence to the grand jury, must not deceive the jurors as to the quality of the testimony they hear. Hogan, 712 F.2d at 761.
- In this case Prosecutor Steven A. Jones presented extensive hearsay testimony to the grand jury and the hearsay evidence was false and meant to deceive the jurors. When reviewing grand jury transcripts in the case along with written statements of Williams Willis Estep and Kimberly Jacobs, it becomes evident that Prosecutor Jones allowed Trooper Clinton Edward Boring to feed misleading facts of the actual content of the written Statements to the grand jury. So, instead of accidentally presenting false hearsay testimony to the grand jury, both Prosecutor Jones and Trooper Boring knowingly and willingly presented false and misleading facts of information regarding written and audio Statement’s they were in possession of to the grand jury.
- Both Counsel for the State and Trooper C. E. Boring had information and official documentation available to them proving the information they were presenting to the grand jury was false. However, Counsel for the State and Trooper C. E. Boring presented the false information to the grand jury anyway where an indictment was procured in the case against Defendant, John Manis Richards and Defendant, David Carl Wine in Case(s) # 13-F-7,8.
Wherefore, the Defendant respectfully Motions that the Honorable Court DISMISS, with prejudice, the indictment returned is this matter.
John Manis Richards
CERTIFICATE OF SERVICE
The Defendant, JOHN MANIS RICHARDS, hereby certifies that he served the forgoing, MOTION TO DISMISS THE INDICTMENT, upon the Plaintiff, STATE OF WEST VIRGINIA, by depositing a true copy thereof in the United States Mail, postage prepaid, addressed to M. Paul Marteney, Special Prosecuting Attorney, 301 Court Lane, St. Marys, WV 26170, on this ______ day of _______________, 2015.
John Manis Richards