Trial delayed

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Defense plans to file motion with W.Va. Supreme Court

BUCKHANNON — The trial for a man accused of failing to appear at a court hearing has been delayed while the defense attorney files a motion with the West Virginia Supreme Court of Appeals.

During a pre-trial hearing held Thursday morning in the case of Eric Wayne Lewis, defense attorney Dennis Willett argued a motion seeking to recuse the Honorable Kurt Hall from presiding over the trial.

Willett said the State of West Virginia intended to call circuit clerk Brian Gaudet as a material witness and that Gaudet served as the clerk of the court and acted in that capacity during jury selection on Monday.

The defense attorney said he filed the recusal motion after learning that Gaudet would be asked to testify in the case.

The issue of Gaudet’s testimony came up after Hunter Simmons, who previously represented Lewis before he asked to be removed and was replaced by Willett, filed a motion to squash his own subpoena, citing West Virginia Rules of Professional Conduct 3.8e, which states that a prosecutor may not subpoena a lawyer in a grand jury or other criminal proceeding to present evidence about a past or present client unless certain provisions are met.

Under the rules, the prosecutor must reasonably believe that information sought is not protected from disclosure by any applicable privilege, that the evidence sought is essential to the successful completion of an ongoing investigation or prosecution and that there is no feasible alternative to obtain the information.

After a hearing on that motion Wednesday, Upshur County prosecuting attorney David Godwin filed a document stating he believed Gaudet could testify that Lewis was personally present at the May 12, 2017 first appearance hearing in the case.

Willett then objected to Gaudet being asked to testify after he administered the selection of the jury on Monday.

“As the clerk of this court, Mr. Gaudet occupies a special position under the Constitution,” Willett said. “He is a judicial officer. He is subject to supervision of the chief judge of this circuit and ultimately the Supreme Court of Appeals. It is improper for Mr. Gaudet to serve as a witness to the State of West Virginia because it’s going to prejudice my client.

“We are not talking about authenticating a document. This is about testimony as to a material element of an offense charged against my client. If [Gaudet] is going to provide testimony, Mr. Godwin is basically incorporating this court into this case in chief. It is prejudicial.”

Hall noted that Gaudet was an elected official.

Willett referenced Rutledge vs. Workman, which speaks to how the clerk, although an elected official, is under the direct supervision of the court and functions in his office under that supervision and direction.

He also pointed to the Supreme Court handbook for circuit clerks, which says the circuit clerk is an officer in the judicial system.

Hall then asked with what would happen if Gaudet witnessed a crime.

“What you are telling me is he can’t be a witness and this court can’t preside over that,” he said.

Willett said he felt a separate tribunal is needed.

Godwin said Gaudet was only performing his administrative duties on Monday. A deputy clerk was filling Gaudet’s role during Thursday’s pre-trial hearing.

“The question the defendant finds objectionable is whether Mr. Gaudet knows if Mr. Lewis was in the court on May 12,” he said.

Godwin argued that the information is recorded and that Gaudet’s testimony about something that is reflected within the records is still within the area of administerial duties. He pointed out that there is no prohibition about judicial officers testifying.

“Probation officers testify all the time,” he said. “There is no breach of any kind of duty or some bolstering of that testimony just because of their employment.”

But Willett argued that probation officers do not typically testify in a jury trial, but rather a probation violation hearing.

“This is a trial on the merits of an indictment to a jury and it’s unfairly prejudicial and improper,” he said.

Godwin said he intended to call a probation officer in this trial.

Hall pointed to trial court Rule 17.

“I don’t believe, Mr. Willett, that this problem you have identified exists,” the judge said. “I don’t believe the court should be disqualified because the circuit clerk is a witness. There is no case law that says that. I’m not convinced. I’m going to deny the motion.”

Willet said he would file a writ of prohibition and anticipated being able to file it within this term of court.

Hall noted there are still two weeks left in the term.

“The Supreme Court can tell him if he has merit or not, and if it does, they will tell me how to proceed,” Hall said.

Godwin said, “I think this is disappointing and I think it’s frivolous.”

Lewis, who had been sitting quietly beside Willett, then asked, “Do I have any say in this?”

Hall said Lewis would have to consult with Willett and called a recess.

After a five-minute recess, Willett and Lewis returned to the courtroom and Willett said he would be filing the writ of prohibition.

Hall called the jury to the courtroom and to tell them the trial had been continued.

“It might take a matter of days,” he said, noting the jury could be called back before the end of the term and to adhere to the rules of not talking about the case to anyone else or reading any media with the case.

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