Berkeley County Prosecuting Attorney says magistrate exceeded her authority

February 15, 2012|By MATTHEW UMSTEAD |

MARTINSBURG, W.Va. — The Berkeley County Prosecuting Attorney’s Office claims a court magistrate exceeded her authority and failed to follow procedure when she dismissed drunken-driving charges against two people and then filed new charges against them to settle the case.

The actions taken by Magistrate JoAnn Overington in two hearings on Feb. 6 were made “all over the objection of the state,” a petition filed Monday in circuit court said.

The petition for writs of mandamus and prohibition asks the court:

  • To void Overington’s decision to file new charges of reckless driving against Lauren B. Nethers of Winchester, Va., and Franz X. Hiergeist of Martinsburg.
  • To enter an order prohibiting the dismissal of the counts of driving under the influence, which were part of a plea agreement Overington reached with defense attorney Harley O. Wagner. Assistant Prosecuting Attorney Christine M. Riley declined to accept the plea.
  • To order that the filing of the reckless driving cases were void ab initio, meaning void from the beginning, and to grant a writ of prohibition to stop Overington from enforcing any order regarding them.

“Nothing in Rules of Criminal Procedure for Magistrate Courts ... or the West Virginia Constitution empowers a magistrate, as a member of the judicial branch, to perform the executive branch function of initiating a criminal complaint,” Chief Deputy Prosecuting Attorney Christopher C. Quasebarth said in the petition for writs of mandamus and prohibition.


Overington, who is serving her eighth year as a county magistrate, said Wednesday that she thought she could take the pleas to settle the cases, but since has realized that she made a mistake and needed a prosecutor to agree to the resolution.

“It was something that was not intentional,” Overington said. “I don’t look at it as a big deal ... lesson learned.”

The case was assigned to 23rd Judicial Circuit Judge Gray Silver III, according to the circuit clerk’s office. A hearing had not been scheduled as of noon Wednesday.

Prosecuting Attorney Pamela Games-Neely said Wednesday the state’s only plea offer was to give the defendants an opportunity to have the DUI charge expunged from their record as part of a referral program allowed by state law because they were first-time offenders.

“There was no reason to reduce this to reckless driving,” Games-Neely said.

The DUI complaints were filed by West Virginia State Police Trooper P.L. North after he arrested the defendants in traffic stops last year, according to court documents. North was absent for the Feb. 6 hearings, Games-Neely confirmed.

On the court orders that Overington signed dismissing the DUI charges, the documents indicate “magistrate motioned” to dismiss them. 

When Riley declined to sign the new warrants charging the defendants with reckless driving, the assistant prosecutor’s name typed on the document was crossed out, according to Games-Neely. Overington signed the charging documents as the complainant, instead, according to court documents.

She also signed the same document as the magistrate issuing the warrant below the statement “on this complaint, sworn or affirmed before me and signed this date by complainant in my presence ...,” the court documents said.

Overington then accepted guilty pleas of the defendants to the reckless driving charges, the documents said.

Overington said Wednesday that the assistant prosecuting attorney who normally is assigned to her court was absent for the hearings on Feb. 6 and she doubted that she would have taken the action had the assistant prosecutor been there.

Games-Neely said the apparent interference with plea negotiations were a first in her tenure as prosecuting attorney, a position she has held since December 1993.

“We haven’t seen this particular action happen,” said Games-Neely, who eschewed any suggestion that the petition filed was politically motivated or a vendetta.

“These things are not personal,” Games-Neely said. “There’s an error here that needs (to be) fixed.”

When contacted Wednesday, Wagner said both of his clients had withdrawn their right to administrative hearings that are held by the state Division of Motor Vehicles since the plea agreements were reached.

The DMV holds the hearings to determine whether to suspend or revoke driving privileges.

“Both of these citizens have already incurred or are in the process of incurring substantial penalties in the civil proceeding that can’t be undone,” Wagner said.

Aside from the dismissal of the DUI charge, misdemeanor offenses of defective equipment filed against Nethers and a traffic lane violation against Hiergeist, also were dismissed, the  documents said.

Each defendant was ordered to pay more than $660 in court costs and fines, and Wagner said the convictions of reckless driving would result in the addition of six points on their license.

Nethers and Hiergeist had blood alcohol concentrations of .137 and .132 in July and October when they were arrested, according to court documents. 

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