This past Monday, Assistant District Attorney Garland Byers filed two Motions in the morning and one in the afternoon. The morning filings were a Motion to Dismiss Defendant’s Motion to Reconsider Disqualifying Counsel and a Motion to Strike the Documents Captioned “Notice of Appeal” and “Motion to Stay Proceedings”. These motions were in response to the Tomblin, Farmer & Morris (TFM) filings the previous Thursday which attempted to secure an appeal of the Disqualification from Judge Marvin Pope on August 6, 2015. (use the BACK ARROW to return to post)
Motion to Dismiss Motion to Reconsider
Motion to Strike

In summary of the Motion to Dismiss, Mr. Byers contends that the “substantial change of circumstances” were “…all the result of acts which were in violation of the Court’s lawful order. (to disqualify TFM) He also included that the conflicts were “…concurrent non waivable conflicts of interest that are actual conflicts and not merely possible conflicts…”

In summary of the Motion to Strike, Mr. Byers reasons “…that there is no basis in law or fact for the documents to be filed and that the documents are of no legal effect.” He then lists the “A total of 9 separate acts of representation appear(ing) in the official record as filings on the part of the disqualified counsel after the entry of the Court’s Order of August 6 which disqualified them all as legal counsel in these matters.”

Additionally, “7. A total of 24 separate acts of representation that are reflected and appear in the official record as exhibits which were prepared by disqualified counsel after entry of the Court’s Order…”

“25. Disqualified counsel and defense counsel did not follow the proper procedure in attempting to obtain appellate review. The defendants’ aforesaid filed documents should, therefore, be stricken.”

In the afternoon on Byers filed a Memorandum of Law in Support of The State’s Motion to Dismiss The Defendant’s Motion for Reconsideration.
Memorandum of Law

The hearing originally scheduled for Tuesday was put off until today. Up until Wednesday near the 5 o’clock hour, there were discussions whether or not the hearing for today would take place.

This brings us up to this morning. I entered the courthouse about 9:10AM and soon entered the Criminal Clerk’s office. I asked if there were any filings this morning or any time Wednesday. Soon, the following Response to State’s Motions to Dismiss and Motion to Strike was carried up to the Judge for his review before the 9:30AM hearing. The Response was filed by TFM at 5:01PM and also signed by Ms. Angela S. Beeker on Wednesday AFTER the previously mentioned discussions about today’s hearing. Josh Farmer, the disqualified attorney signed the Certificate of Service. After a brief scanning of this document, two things jumped out.
Response filed 8 26 5 01 PM

From The Response:

“The Firm has not acted in violation of the Court’s Order of August 6, 2015,” and “This Court lacks jurisdiction over any challenge to the Defendant’s appeal as to the Court’s Order of August 6, 2015.”

Yes, this is what the Judge had the opportunity to read just before or as the hearing began. How would that taste in your mouth if you were in his shoes…?

In the courtroom, we were seated and soon WOFF members began filtering in. A small number were allowed to attend today’s hearing. Of course, the three defendants in question were there. A few leadership were present and several big names were missing.

Ms. Beeker began with a summary. Rcatalyst.com does a good job of outlining the sequence of events. Worthy to note, Judge Pope again proposed a scenario of a paneled jury with a defendant on the stand. He proposes the defendant begins to testify contrary to a previously signed statement. What do you do then, declare a mistrial and end up right back where we are today? Beeker conceded the attorney would have to step down.

From my perspective, Beeker had many documents to support her positions, but lacked the smooth confident presentation and her engagement with the judge was polite but not convincing. Near the 10:30AM mark, she begins talking about a case as a support point. When the Judge asked for more information, she began her reply with, “I think…” To which the Judge agreed to give her until noon to present more info. Her weak, “I think..” opening must have been a recess bell for the Judge.

After the announcement from the Judge to allow Beeker time to present, the WOFF supporters rose in unison and exited post haste. Before this time, Josh had already left the courtroom, I was told. I lost sight of him after he slipped into the gallery and later, exited the courtroom all together. He may have had a more important appointment, but tell me what that would have been? He was a witness to a crushing defeat and could not stand to see how it ended? Not only had TFM failed to rescue the three WOFF members still unjustly coddled in their care, the tide had turned to expose the quest for counsel privileges to reflect a petulant, prideful attitude still acting as defense counsel DESPITE being rightfully told no!

After all of today’s motions, commotions and palaver, the Judge issued the following ORDERS-(paraphrased)
The State’s Motion to Dismiss the Notice of Appeal is hereby ALLOWED.
The Defendant’s Motion to Reconsider is hereby DENIED.
The Defendant’s Motion to Stay Proceedings is hereby DENIED.
3 ORDERS 8 27 Judge Pope

Where do we go from here? I believe there will be another hearing to advise the three defendants of their right to counsel, unless some other motion causes a commotion. Unless there is extended palaver, we can move on to venue and venire review in September and start the trial as soon as legally possible. So far, the State appears to be setting the stage for a trial as free as possible from foreseeable conflicts when dealing with five defendants charged with crimes arising from the same incident. Mr. Byers and the team with the District Attorney’s office appear ready to make the choices needed now to stem the tide of troubles later. We applaud them for their dedication in the face of persistent resistance. Thank you…

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