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W.Va. DHHR lawyer loses license

CHARLESTON, W.Va. -- The West Virginia Supreme Court on Thursday suspended an assistant attorney general's license to practice law.

Wendelyn A. Elswick will resign her position Friday as an assistant attorney general who works at the state's Department of Health and Human Resources, according to a statement from Attorney General Patrick Morrisey's office.

In February, the state Office of Disciplinary Counsel released a 45-page finding that asks the West Virginia Supreme Court to suspend Elswick's law license for allegedly hiding evidence in a convicted murderer's appeal while she was serving as a Kanawha County public defender in the early and mid-2000s.

Elswick, wife of Lincoln County Family Court Judge Scott Elswick, represented Dana December Smith in an appeal of Smith's 1992 conviction for stabbing two women to death in Leewood.

In his appeal, Elswick argued that the crimes were really committed by Texas serial killer Tommy Lee Sells, a Texas drifter who spent time in West Virginia at about the same time the two women were killed. In 2004, Sells told a reporter for the television show "48 Hours" that he had committed the murders.

Elswick was then assigned to Smith's appeal and went to Texas to interview Sells, who was on death row. Elswick allegedly hid evidence that Smith and Sells had known each other, allegedly covering up notes and letters that proved otherwise.

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 Sells had met before, despite repeatedly assuring others that the two had no link to each other.

"While Castelle, by his own admission, states that he could have investigated the matter more promptly, this Court is of the opinion that Castelle exercised reasonable diligence in uncovering the circumstances resulting in the ethics complaint he filed in May 2009," the high court's opinion states.

According to court documents, Elswick and Sells developed a sexually suggestive pen-pal relationship that allegedly hurt Smith's chances for an appeal. Elswick asked to be taken off Smith's case in 2005.

Elswick has said 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 has 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.

Elswick must undergo a psychological evaluation and deal with other sanctions before getting her law license back. If she is reinstated, she would be on probation for two years.

Reach Kate White at kate.white@wvgazette.com or 304-348-1723.


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