CHARLESTON, W.Va. -- A lawyer who represented a West Virginia man when he appealed his double murder conviction elicited false information from a Texas death row inmate and concealed evidence that the two convicted killers knew each other, a disciplinary panel has found.
Last month, the state Office of Disciplinary Counsel released a 45-page finding that calls for the West Virginia Supreme Court to suspend the law license of Wendelyn Elswick, a state assistant attorney general, for at least three years.
Elswick worked in the Kanawha County public defender's office in the early and mid-2000s. She represented Dana December Smith during his appeal. Smith was convicted in 1992 of stabbing two women to death in Leewood.
The ODC found during a years-long investigation into complaints lodged by Elswick's former supervisor, Kanawha County Chief Public Defender George Castelle, that Elswick buried notes and letters that indicated Smith and Texas serial killer Tommy Lynn Sells had met before, despite repeatedly assuring others that the two had no link to each other.
Sells, a drifter who spent time in West Virginia in the early 1990s, told authorities in 2001 that he committed the murders. Elswick elicited information from Sells after that, knowing it was false, according to the disciplinary panel.
The letters, which were the focus of a separate complaint that Smith filed against Elswick, also revealed that she had a suggestive pen pal relationship with Sells that ultimately damaged her client's appeals chances, the ODC found.
In her correspondence with Sells, Elswick shared details about her life, including her strained relationship with her father and how she felt 'stupid' and 'poor' in law school. In return, Sells sent Elswick disturbing "rape fantasies."
Elswick has said that she kept in touch with Sells on the advice of Texas authorities, who apparently advised her that she would need to regularly correspond with Sells to keep his attention.
She also repeatedly denied having knowledge that Smith and Sells knew one another, and told the panel that she did not remember Sells giving her information that would have suggested otherwise.
"I never meant to hurt anybody in any of this case. And I was just -- I was stupid," Elswick said during one hearing, according to the panel's findings. "I was stupid about the letters. But I really -- really tried to do the right thing and do the best that I could. And I'm sorry."
Elswick's lawyer, Mark Kelley, filed a one-paragraph response to the complaint that objects to the findings. Kelley did not respond to requests for comment. Elswick could not be reached; her husband, Lincoln County Family Court Judge Scott E. Elswick, said the family had no comment.
Smith and Sells both remain in prison.
In 1992, a Kanawha County jury convicted Smith of killing Pamela Castoneda, 36, and her mother, Margaret McClain, 63. Both women were found in a home in Leewood. McClain was stabbed 17 times; her daughter, 14 times. Smith has always proclaimed his innocence.
One of the women had been raped, but prosecutors did not pursue rape charges. The murder weapon was also never identified, though prosecutors believed that it might have been a hunting knife that Smith had borrowed from a friend and cleaned sometime after the killings.
Although Sells' name was never mentioned during Smith's trial, Sells was in Charleston in the early 1990s, about the time McClain and Castoneda were murdered, according to previous reports.
He was panhandling with a "will work for food" sign on a Washington Street bridge when a woman offered to take him back to her apartment and feed him. About an hour later, a neighbor found the woman naked, covered in blood, screaming, and clutching a cordless phone outside a Grove Street apartment.
The woman said that Sells had ambushed her in her apartment and raped her at knifepoint before slashing her throat and tying her hands and feet.
Sells eventually pleaded guilty to malicious wounding charges after then-Kanawha County Prosecuting Attorney Bill Forbes agreed to drop the rape count in light of medical records that contradicted the woman's testimony, and other police accounts that showed she had a history of falsely accusing people of sexually assaulting her.
On New Year's Day in 2000, Sells crawled through a window at a home in Del Rio, Texas, and killed Katy Harris, 13. She was stabbed 16 times. Sells also slit the throat of a 10-year-old girl, who escaped. Sells was convicted and sentenced to death.
After his arrest, Sells claimed that he had killed more than a dozen people, including the two W.Va. murders.
Elswick, whose name was then Wendelyn Campbell, was assigned to Smith's appeal in 2004, after Sells told a reporter for the TV show "48 Hours" that he had committed the West Virginia murders.
Elswick began contacting Sells, asking for permission to interview him. At first, according to the ODC report, Sells wrote back to Elswick, and said, "about this individual that you represent in this matter, please tell him he is a [lying] ass ... may just let him rot."
In May 2004, Elswick and legal assistant Jane Brumfield met with Sells on death row in Livingston, Texas. During the interview, Elswick scribbled some notes that indicated that Smith "bought drugs off Tommy" and that the two "became acquainted."