Wolverton Drug Case Argued at Supreme Court Today

The appeal of the delivery of drug convictions of Kathyrn Wolverton and her son Davis Wolverton were heard by the Supreme Court of Appeals of West Virginia today.

If the questions and comments made by the Supreme Court Justices to the Wolverton's attorneys are any indication of the potential result, most spectators of the argument would say that the convictions will likely be upheld.

Gassaway lawyer Daniel Grindo, representing Davis Wolverton, was the first to address the five Justices. He attempted to argue that the conviction should be set aside because the Prosecutor knowingly presented false testimony to the jury. Before he was able to fully explain his position, Grindo was interrupted by Chief Justice Brent Benjamin, who asked "was it false testimony or just inconsistent testimony and what is your proof it is false?"

Grindo claimed the Prosecutor admitted it was false. However, as pointed out by Justice Margaret Workman, "how do we know which statement [that the confidential informant made] was false?" Workman, along with Benjamin and Justice Allen Loughry, all commented that the defense attorneys had the full opportunity at the trial to point out the allegedly false statements and to expose the informant's inconsistent and/or false statements. Justice Workman said "this was an issue of credibility for the jury to determine." Loughry asked "how were you prejudiced since you cross-examined [the informant] and exposed before the jury his inconsistencies?"

Several members of the Court took issue with Grindo's characterization of what the Prosecutor said at the trial to Judge Jack Alsop. The trial transcript, as read by Chief Justice Benjamin, did not support Grindo's characterization that the Prosecutor said the informant's testimony was false.

Grindo also argued that the conviction should be set aside because a husband and wife sat on the jury together. Grindo argued that despite the Court's instructions not to discuss the case, it could not be reasonably expected that a husband and wife would not so discuss the case in a multi-day trial.

Chief Justice Benjamin pointed out that West Virginia has a civil case that did not find any problem with a husband and wife sitting on a jury together. The Chief asked Grindo: "Are you aware of any case from any other State or jurisdiction saying that a husband and wife sitting on a jury together is improper?" Grindo answered: "No."

Sutton lawyer Bernard Mauser, representing Kathryn Wolverton, next addressed the Justices. He only argued the issue of the confidential informant's inconsistent or false testimony, and did not raise the husband/wife juror issue.  

Mauser did not appear to fare any better with the Justices than did Grindo. Justice Workman noted that "maybe the informant testified falsely at the abuse and neglect proceeding, maybe he testified falsely at the trial, but it's just a jury issue for the jury to judge the credibility of the witness." Not one of the Justices appeared to accept the argument that the Prosecutor knowingly presented false testimony.

Scott Johnson, Senior Assistant Attorney General, represented the State. He argued that the defendant's due process rights were protected in this case because the informant was subject to "withering cross-examination." He argued the jury was well aware of the informant's inconsistent statements and ruled against the Wolverton's anyway.

On the husband/wife juror issue, Johnson noted that other Courts across the nation which addressed the issue did not find fault with having a husband and wife on a jury together. Not one Justice asked any question or made any comment during Johnson's entire argument.

The case has now been submitted for a written decision. Generally, a written opinion is issued within about 60 days of the oral argument.

For more information about the appeals filed by the Wolverton's, please review our prior article by clicking on this link:

http://webstercommentator.blogspot.com/2013/02/wv-supreme-court-to-hear-arguments-on.html