Document: Sheriff defended urinating on detainee’s hat
MARTINSBURG – Jefferson County Sheriff Robert “Bobby” Shirley is asking a judge to delay his Jan. 22 criminal trial while his lawyers prepare to argue that prosecutors have tainted the jury pool by releasing evidence that he shot at a man he caught with his then-wife almost 30 years ago.
Shirley is under indictment for allegedly using excessive force against since-convicted bank robber Mark Daniel Haines during a 2010 arrest, and for allegedly falsifying a use of force report to obstruct a federal investigation. If convicted on both counts, he faces a maximum of 30 years in prison.
The new evidence that has alarmed Shirley’s defense team comes from a transcript of a 2004 hearing during which he testified that he “drove up on them and caught [his wife with another man].” He said he shot at the man once. He also testified he was on duty as a deputy at the time.
Shirley’s defense team, attorneys Kevin Mills and Shawn McDermott, argue that the evidence is likely to be ruled as inadmissible during the trial because it is irrelevant and prejudicial.
“The 30-year-old incident, we believe, is totally irrelevant to the current allegations against the sheriff,” McDermott said in a phone interview. “We think that the sheriff acted completely reasonable and without excessive force in the arrest of a bank robber who was fleeing arrest.”
However, in a recent motion, Mills and McDermott argue that because the government has publicly filed this information, “this salacious and inflammatory ‘evidence’ has already been broadcast to the potential jury pool, obviating any ruling regarding admissibility. The result of this public filing is a poisoning of the pool of potential jurors right before the jury is slated to be picked.”
Mills and McDermott are asking Northern District Judge John Preston Bailey to issue a continuance to delay the trial, while they retain an expert to poll the potential jury pool. They say they may argue for the trial to be moved to a different location.
In addition to the shooting, Shirley also has admitted that as a deputy, he once urinated on a hat belonging to a man held in custody – an admission made during a 2009 Civil Service Commission administrative hearing and brought to light by research by the Spirit of Jefferson.
Prosecutors have not submitted that admission into evidence.
During the 2009 hearing, which was convened to consider the firing of Sgt. Michael T. Dodson, Michael Scales, then the sergeant’s attorney, asked Shirley if he thought urinating on the hat of a person in custody was appropriate behavior.
According to the transcript, Shirley replied: “Under the circumstances, yes.”
Scales then asked if it were true that Shirley had been disciplined in the incident, but an objection by Assistant Prosecuting Attorney Stephanie Grove prevented Shirley from answering the question.
McDermott said in a phone interview he was unaware of the incident and could not comment.
In related development, several law enforcement officers being sued by Haines in a civil case have retained their own lawyers, according to court filings.
Shirley is being represented by a two-person team from the Pullin, Fowler, Flanagan, Brown and Poe law firm, while deputies Joseph Forman and Terry Palmer, along with Ranson Police Officer Charles Lynch are being represented by lawyers from Bowles, Rice, McDavid, Graff and Love.
State Trooper Joseph Bush will be represented by Tracy Eberling from Steptoe and Johnson. Other defendants have yet to retain counsel.
None of the lawyers for the law enforcement officers would comment for this story.
So far, only Shirley, Forman, Palmer and Bush have filed responses to Haines’ civil complaint. All the answers agree in most respects – all deny Haines’ statement that he gave up when exiting the car and was immediately handcuffed, and all deny the use of excessive force.
But Bush’s response differs sharply on the issue of whether Shirley kicked Haines in the head while Haines was bent over the back of a pickup truck, as Haines alleges.
Shirley flatly denies the claim. Forman and Palmer say they have insufficient evidence to admit or deny the claim. But Bush admits “that he observed [Shirley’s] foot make contact with the plaintiff’s head.”
Shirley, Forman and Palmer also reject Haines’ claims that he sustained a broken eye socket, nose and rib and other injuries as a result of their actions, but Bush’s language is more nuanced.
Bush denies “any alleged wrongdoing and causation to the extent they pertain to him,” but says that he doesn’t have sufficient information to affirm or deny that the actions of other officers caused these injuries.
According to officials at the Charles Town detachment of the West Virginia State Police, Bush no longer works out of the local office. He’s now a State Trooper in Clarksburg
Haine has dropped Charles Town Police Sgt. W.M. Spessert from the complaint, which is slated to go to trial later this year. Waddell says Spessert’s lawyer has assured him that Spessert was not present at the incident.