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High court prevents prosecutor from appearing before grand jury

May 15, 2001

High court prevents prosecutor from appearing before grand jury



By BOB PARTLOW / Staff Writer, Martinsburg


The West Virginia Supreme Court of Appeals Monday voted 3-2 to prohibit a special prosecutor from appearing before a Berkeley County grand jury today in the case of three sheriff's deputies who a grand jury indicted in the beating of a Hedgesville, W.Va., man.

The court agreed with the motion filed by attorney Laura Rose seeking to prohibit Mineral County Prosecuting Attorney Lynn Nelson, acting as a special prosecuting attorney in the case, from seeking advice from a new grand jury on how to proceed.

"Once you receive indictments from one grand jury, it is not in the province or power of another grand jury to change that," Rose said in reaction to the decision.

She said Nelson could decide to drop the case on his own, but said "if he does that, he'll be out on a limb by himself."

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"I've been out on a lot of limbs," Nelson said.

He said he wants to appear before Berkeley County Circuit Court Judge Christopher Wilkes, perhaps as early as next week, to tell him what he wants to do with the case.

Nelson could dismiss the charges against the deputies without seeking permission from Wilkes, but any dismissal would have to be done in a formal court proceeding.

He said he did not rule out dismissing the indictments.

"I'm going to have to make a decision on what to do," Nelson said. "I'd hoped to appear before the grand jury and hear what the people of Berkeley County wanted, but now I would like to appear before Judge Wilkes."

Deputies Ron Gardner, Christopher McCulley and John Van Orsdale Jr. were indicted on five misdemeanor or felony counts, including:

HEIGHT="6" ALT="* "> One count each of felony malicious battery

HEIGHT="6" ALT="* "> One count each of felony unlawful assault.

HEIGHT="6" ALT="* "> One count each of felony conspiracy to inflict injuries

HEIGHT="6" ALT="* "> One count each of misdemeanor battery

HEIGHT="6" ALT="* "> One count each of misdemeanor failure to perform official duties

They were charged in the indictments in the beating of Todd Rankin in the parking lot of the Hedgesville Post office Jan. 17, 2000.

Rose, who represents Rankin, appeared before the grand jury on Jan. 10, after which the deputies were indicted.

Nelson was brought into the case late, he said.

"I've never had a case where there wasn't an investigation by an independent law enforcement agency or independent investigator," he said. "The only investigation in this case was by (Rose)."

Since then, two special prosecutors appointed by Wilkes have reviewed the case thoroughly, he said.

"They have reached the same conclusion" about the circumstances of the case, he said. He would not say what that conclusion was.

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