|Volume Number: 29
Category(s): UNJUST CONVICTION
|Opinion Issued December 17, 2012|
|THOMAS WILSON CASTO|
|STATE OF WEST VIRGINIA|
Michael T. Clifford, Attorney at Law, for Claimant.
Harden C. Scragg Jr., Assistant Attorney General, for Respondent.
| MCCARTHY, JUDGE:
Claimant, Thomas Wilson Casto, brings the instant claim seeking compensation from the Respondent, State of West Virginia, under the State’s wrongful arrest statute. He alleges that he was wrongfully arrested and detained, and that the prosecution’s undue delay resulted in a loss of liberty for which he is entitled to damages. The Court is of the opinion to make an award in this claim for the reasons more fully stated below.
On August 11, 2006, the Claimant was arrested by the West Virginia State Police on charges evidenced by a warrant issued by the Magistrate Court of Jackson County in connection with a suspected arson, which had occurred the month prior. The warrant for the Claimant’s arrest was issued based on information provided by a police informant, Jeremy Fields, who inculpated the Claimant in return for his own prosecutorial immunity. Soon after the Claimant’s arrest, Jason Baltic, Assistant State Fire Marshall, rendered an opinion that the fire was incendiary in nature. This opinion, however, was inconsistent with the forensic examiner’s report of August 2, 2006, which found that there were no ignitable liquids identified in samples submitted to the lab. On September 3, 2006, a preliminary hearing was conducted at which Trooper Marion of the West Virginia State Police testified that the only evidence tying the Claimant to the alleged arson was the statement of police informant Jeremy Fields. At that time, counsel for the Claimant provided the prosecution with a polygraph examination report, which revealed that the Claimant did not participate in the arson. Counsel for the Claimant thereafter contacted the prosecuting attorney on numerous occasions offering to have the Claimant retake the polygraph examination.
On September 21, 2006, counsel for Claimant filed a summary petition for bail in the Circuit Court of Jackson County, and again provided the court with the polygraph examination report as well as the Claimant’s alibi information.
On December 18, 2006, counsel for Claimant again contacted the prosecuting attorney requesting that she consider dismissing the charges in light of the uncorroborated statement of Jeremy Fields, the alibi notices, and the polygraph examination. The State, through the prosecutor, did not respond to counsel’s request. On March 20, 2007, the Claimant and his counsel appeared again before the Circuit Court of Jackson County for a hearing on a motion to be released from confinement. At this hearing it was revealed that Jeremy Fields had recanted his former statement to Trooper Marion. The State was given the opportunity at the hearing to interview Jeremy Fields to determine if he did, in fact, recant but the prosecutor declined to do so. The Claimant was subsequently released on home confinement on the same day.
On June 27, 2007, the State presented these matters to the grand jury. The Claimant asserts that Trooper Marion improperly testified to several matters including that “. . . Casto just has [the] reputation of doing nasty things, period.” Trooper Marion also stated that “. . . Casto is a career, I guess what you would call criminal type . . . .” The matter was then submitted to the grand jury, and Claimant was indicted.
On July 5, 2007, counsel for the Claimant filed his initial motions for discovery and Notice of Alibi, providing names and addresses of certain alibi witnesses. The alibi witnesses were never contacted or interviewed by the State.
On November 28, 2007, on the eve of trial, and after several attempts to convince the prosecution to dismiss the charges against the Claimant in light of exculpatory evidence, the State filed its Motion to Nolle Prosequi, alleging that the physical findings of the house fire were inconsistent with Jeremy Fields’ statements.
The Claimant asks this Court to make an award for wrongful arrest, claiming that the Jackson County Prosecutor’s Office and the West Virginia State Police created undue delay in the prosecution of the Claimant and wrongfully pursued the charges against the Claimant despite the existence of exculpatory evidence.
The Court begins by noting that it is well aware of the concept of absolute prosecutorial immunity as well as the qualified immunity enjoyed by the West Virginia State Police. However, the West Virginia Legislature has given this Court authority to award claims for wrongful arrest, when the Court determines that the State has a moral obligation to compensate a claimant for loss of liberty. See State ex rel. Vincent v. Gainer, 151 W. Va. 1002, 158 S.E.2d 145 (1967).
In determining whether or not a moral obligation exists in the context of wrongful arrests or convictions this Court is guided by W. Va. Code § 14-2-13a, which states in pertinent part that “[i]n order to obtain a judgement in his favor, claimant must prove by clear and convincing evidence that . . . he did not commit any of the acts charged in the accusatory instrument . . . and [h]e did not by his own conduct cause or bring about his conviction.”
Here, based on the amount of exculpatory evidence ignored by the prosecution, the Court finds that the Claimant has clearly and convincingly shown that he did not commit the act charged in the accusatory instrument, and that he did not bring about his own conviction or arrest. The police were given information by an unreliable informant that later recanted. Given that it was the informant’s information that formed the whole basis for the prosecution of the Claimant, a recantation should have prompted at the least further investigation. It is alarming to this Court that the prosecution was provided with alibi information and polygraph examination reports which it apparently ignored for some time, although we are aware that polygraph results are not admissible as evidence. Confident that the Claimant has met his statutory burden, the Court determines that an award should be allowed for the Claimant’s loss of liberty brought about by the Respondent’s undue delay in dismissing the charges against him. Based upon the limited evidence before the Court on the issue of damages, and Claimant’s testimony concerning his work history, the Court determines that the amount of $5,000.00 is fair and reasonable to compensate Claimant.
Accordingly, based upon the above findings of fact and conclusions of law, the Court does hereby make an award to the Claimant in the amount of $5,000.00. The Claimant has met his burden under W. Va. Code § 14-2-13a, and a moral obligation exists on the part of the State to compensate the Claimant for his loss of liberty.