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Disciplinary counsel: Kanawha prosecutor should be suspended

By Kate White, Staff writer
LAWRENCE PIERCE | Gazette
Kanawha County Prosecuting Attorney Mark Plants (right) talks with his lawyer, Jim Cagle, at a Friday morning hearing in Kanawha Magistrate Court. Later Friday, the West Virginia Office of Disciplinary Counsel said that either Plants should be suspended immediately or his entire office should be removed from prosecuting allegations of domestic violence involving parents and minor children.

Kanawha County Prosecuting Attorney Mark Plants should immediately be suspended or his entire office should be removed from prosecuting allegations of domestic violence involving parents and minor children, according to the office that oversees lawyers in West Virginia.

Plants has violated the West Virginia Rules of Professional Conduct and “poses a substantial threat of irreparable harm to the public,” according to a filing by the Office of Disciplinary Counsel with the state Supreme Court late Friday.

Plants was charged last week with domestic battery of his 11-year-old son and has admitted striking the boy several times with a belt. He also faces a charge of violating a domestic-violence protection order telling him to stay away from his ex-wife and sons. Both charges are misdemeanors.

Plants has said he’s not guilty of any crime. Earlier this week, his attorney, Jim Cagle, wrote in a court filing that Plants has the right to discipline his child and asked for the domestic-battery charge to be dismissed.

That’s a conflict of interest, according to the ODC’s filing, made by chief ODC attorney Rachael Fletcher Cipoletti and Joanne Vella Kirby.

Plants “cannot represent his client, the State of West Virginia, in cases brought against parents or guardians … because such representation may be materially limited by his own defense that such alleged criminal conduct is not a violation of the law,” the ODC filing states.

The Kanawha prosecutor “has materially limited the manner in which law enforcement, victims’ advocates and victims themselves respond to domestic violence situations, due to the conflict of interest [Plants] has created,” the filing states.

Neither Plants nor his lawyer could be reached Friday evening. A hearing should be set on the ODC motion within 30 days.

In a statement Friday night, Kanawha County Commission President Kent Carper said, “In light of the clear and most serious findings and recommendations issued by the Office of Disciplinary Counsel to the Supreme Court, released late this afternoon and in order to protect the integrity of the Prosecuting Attorney’s Office and its ability to properly prosecute future cases, I feel this matter must come to an immediate resolution.”

Carper said county commissioners “will take such actions as necessary when it is appropriate to do so.”

Earlier Friday, Plants appeared in Kanawha County Magistrate Court to ask a magistrate to modify the conditions of his bail.

Mercer County Magistrate Mike Flanigan, who was appointed to hear the Plants case, agreed and said the prosecutor could have supervised visits with his two sons.

Kanawha Magistrate Kim Aaron previously approved Plants’ motion, but Flanigan said Aaron didn’t have the right to do that, because Flanigan already had been appointed in the case.

“The entire state is watching,” Flanigan said Friday. “This has to be done correctly.”

A family court order issued last month said Plants would undergo counseling to eventually have the domestic-violence protection order dismissed. Cabell Family Court Judge Patricia Keller also said Plants could have supervised visits with his sons.

Plants has completed counseling, Cagle told the magistrate. Dr. Clifton Hudson, a South Charleston clinical psychologist who evaluated Plants, said the prosecutor should not be denied the chance to see his sons.

Cagle read from the doctor’s report: “We do not perceive any imminent safety threat to Mr. Plants … resuming normal contact with his children. We believe a forced separation from their father is unlikely to be in the children’s best interest.”

Former McDowell County prosecutor Sid Bell, who was appointed to prosecute the case, said he didn’t object to the terms in the family court order. He also said Plants’ ex-wife, Allison, didn’t object to the bail conditions being modified but said she didn’t want them to include text messaging. It’s sometimes not clear who is sending the texts, Bell said.

Plants was charged March 18 with violating a domestic-violence protection order that was granted in February to Allison Plants after she accused her ex-husband of inflicting too harsh a punishment. The order said Mark Plants couldn’t have any contact with his ex-wife or their sons. Police say Plants violated the order when he found his children in a vehicle outside a local pharmacy and stayed with them until their mother exited the pharmacy.

Plants was charged again March 31, this time with misdemeanor domestic battery. Police say Plants struck his 11-year-old son with a leather belt more than 10 times, leaving a 6- to 7-inch bruise on the boy’s thigh.

Bell hasn’t yet responded to that motion.

A status hearing will be held May 21 in both cases, Flanigan said Friday. Plants has demanded jury trials on both charges.

Each charge carries a penalty of up to one year in prison.

Plants, 37, was elected Kanawha prosecutor in 2008 and was re-elected in 2012. Allison Plants filed for divorce in June 2012. Mark Plants married Sarah Foster, his former secretary, in December. They have one child together.

Plants also has been criticized for the $15,000 in pay raises Sarah Plants received during the four years she worked for him. She also had multiple motor-vehicle violations dismissed in magistrate court without proof that the violations were corrected. The state Office of Disciplinary Counsel is investigating the alleged favoritism, Plants has said.

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


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