"Every criminal defendant, whether indigent or not, throughout West Virginia is supplied discovery free of charge in felony cases," Mussomeli said.
"There's a local rule in Berkeley County where the judges are saying in magistrate court the defendant should pay. Why they did that, I don't know. It has never been enforced," he said.
The 1993 order requiring defendants to pay for discovery doesn't mention indigent clients, Mussomeli said.
He said the public defender's office didn't challenge the 1993 order when it was enacted because it was never enforced. Prosecuting Attorney Pamela Games-Neely began enforcing the order in 1997, Mussomeli said.
"The Supreme Court told us to do it," Games-Neely said, adding that Mussomeli should challenge the order in Charleston, W.Va., not in Berkeley County.
Games-Neely said she was aware of the 1993 order signed by Berkeley County judges, but only recently learned the state Supreme Court also signed it.
"We were out of compliance, now we're not," she said. "It's kind of a ludicrous lawsuit. If you don't like (the order), go to the Supreme Court. I didn't write the order."
Last year, Games-Neely decided discovery would be provided by her office for magistrate court cases if the defense attorneys went to her office, made copies themselves and paid for them, the complaint said.
The public defender's office has incurred $243 in bills for copies.
The public defender's office told her it wouldn't pay the bills. Games-Neely sent a letter last month saying personnel from that office may review discovery material, but can no longer make copies.
"It's not only just unfair, it's turning the legal system upside down," Mussomeli said.