Putnam prosecutor: Kanawha prosecutor’s new pretrial deal still illegal
WINFIELD, W.Va. — Putnam County Prosecuting Attorney Mark Sorsaia believes the deal reached Tuesday for Kanawha County Prosecuting Attorney Mark Plants to enter a batterers intervention program is illegal.
In a letter sent Wednesday to Jim Cagle, Plants’ attorney, and Sid Bell, the longtime McDowell County prosecutor appointed to handle Plants’ prosecution, Sorsaia argues that the new pretrial monitoring deal — which would involve Plants going to the Putnam County day-report center for a 32-week program to have charges he faces over hitting his son with a belt and violating a protection order dismissed — is “arguably an attempt to circumvent the legal restrictions regarding Pre Trial Diversions.”
In light of the letter, officials with Putnam County’s community corrections program canceled an intake meeting with Plants that was scheduled for Thursday, Sorsaia told the Gazette.
Sorsaia argues that the new deal, which he says he wasn’t told about ahead of time, is practically the same as the deal Bell and Plants reached last month — an agreement Bell said he later realized was illegal because defendants accused of domestic violence are ineligible for pretrial diversion.
The new deal is instead called a “Pretrial Monitoring Agreement as a Condition of Bond,” Sorsaia’s letter states.
“You can change conditions of bond and say, yeah, you gotta do this during the bond period and people can agree to it,” Sorsaia told the Gazette. “But when you say that, ‘Oh, by the way, if you complete this, we’re going to dismiss the case,’ you, know, it’s a pretrial diversion.”
“… If it quacks like a duck, and swims like a duck, and looks like a duck, it’s a duck,” he added.
Sorsaia said he’s willing to change his mind if the lawyers give him a good legal justification. “But, you know, I’m going to tell you, I don’t really know how they’re going to do it,” he said.
The West Virginia State Police charged Plants with domestic battery of his 11-year-old son after Plants left a 6- to 7-inch bruise with a belt on the boy’s leg. He also is charged with violating a domestic violence protection order that required him to stay away from his ex-wife and their sons.
The state Supreme Court has approved pretrial monitoring for domestic violence charges only under a pilot program in Kanawha County, said Lisa Tackett, director of family court services for the Supreme Court. She said at least one person in the program has been allowed to attend a batterers intervention program in another county while returning to Kanawha County for compliance hearings.
Because Plants lives in Kanawha County, he’s eligible to participate in the pilot program, Bell has said. He has to take a class as part of that program and chose to take it in Putnam County, to try to avoid a conflict of interest.
Mercer County Magistrate Michael Flanigan, who was appointed to handle the case after Kanawha County’s magistrates recused themselves, went over the deal and set a compliance hearing for Aug. 27 in Princeton. It’s unclear if Plants is allowed to progress with the pretrial monitoring deal through Kanawha’s pilot program in Mercer. Flanigan would not comment Wednesday.
Pretrial diversions promise charges will be dismissed if the accused follows through with certain behaviors. If the accused doesn’t comply, he or she can be placed back on the docket for prosecution. Pretrial monitoring agreements don’t guarantee that charges will be dropped and they require an extra educational component and require the defendant to return to court for interim hearings. Atop that, those who don’t comply can have their bail revoked and be arrested.
Kanawha County, the state’s most populous county, sees about 700 more domestic violence cases per year than any other county, according to the state’s Family Court Service Division. The pilot program consolidates domestic violence cases between Family Court Judge Mike Kelly and Magistrate Julie Yeager.
Bell said he spoke with officials with the West Virginia Coalition Against Domestic Violence, who supported the monitoring deal. After the initial deal involving pretrial diversion, the domestic violence coalition issued a public statement that said those types of deals jeopardize victim safety.
Plants deferred comment Wednesday to Kanawha County Assistant Prosecutor James Bailey, who noted that pretrial monitoring programs to dismiss domestic violence charges have been approved by representatives of anti-domestic violence associations and the Supreme Court. He said that the monitoring programs, unlike pretrial diversions, require an approved counseling program.
“There’s no issue with that type of agreement,” Bailey said.
Sorsaia said the decision to accept Plants into the program ultimately lies with the community corrections program, although he said he doubts community corrections would go against his advice.
In his letter, Sorsaia also wrote that a section of the Community Corrections Guidelines states that the county’s program can’t accept pretrial diversion cases related to domestic violence.
“Not only is the agreement potentially contrary to State Law, it would also violate Community Correction Grant Provisions,” he wrote.
Sorsaia wrote that he normally doesn’t “second guess the decisions of a fellow prosecutor” or publicly comment on plea agreements made in another county, but added, “under the current circumstances Putnam County has been included in this agreement without prior consultation, and now we must make a decision.”
“We had no idea that there was an agreement,” Sorsaia said Wednesday. “No one told us about the potentiality of the agreement.”
Reach Ryan Quinn at firstname.lastname@example.org or 304-348-1254.