Starcher, J., Concurring Opinion, Case No.23891 State of West Virginia ex rel. Debra Nelson v. Travis Grimmett

No. 23891 - State of West Virginia ex rel. Debra Nelson, a/k/a/ Debra Horn v. Travis Grimmett, Sheriff of Logan County, West Virginia

Starcher, Justice, concurring:

As a trial judge I encountered several cases like this one, where after looking at all of the evidence, I became fairly certain that the ends of justice would not be served by sending someone to a requesting state for one of our lesser non-violent offenses -- worthless checks. So I tried to use the inherent "wiggle room" in our legal system to see if something positive could be salvaged in a difficult situation.

I recall one such case, where a young man from our community was driving for a local taxi company; he was pulled over by the local police for having too many people in his cab. A computer check found that Texas had a warrant out for him for not paying court fines and restitution, and for skipping out on his probation. The underlying offense involved bad checks. So the young man was duly slapped in the Monongalia County jail, and extradition papers from Texas duly arrived, festooned with seals and ribbons.

The young man's lawyer made the creative argument that the entire Texas prison system had recently been adjudged unconstitutional, and therefore, extradition was not permitted. While I did not necessarily buy the lawyer's argument, I thought that there was a possible resolution that would serve the ends of justice, and not break up this young man's life, which he was trying to put together.

So I kept him in our jail, but let him out to work. After he had worked for some time, I let him out on bail. And I told our prosecutor to tell Texas that the court was considering the matter. I also required the young man to immediately begin making restitution payments to Texas.

After about two years, Texas was paid off. The young man was not a perfect citizen -- few are. He fell off the wagon a couple of times, and I think I locked him up once more when he got behind in his payments, but he did pay.

In a small way, this is a success story, and I know that circuit judges in this State help write such stories every day. What were the key ingredients to this modest success story?

First, a lawyer was willing make a creative argument. Second, a judge was willing to take a creative approach to doing justice, and finding room within the law, including the patience that the law properly respects in appropriate cases.

A third and important ingredient was the fact that the representatives of the prosecuting arm of the State of West Virginia were willing to give a creative approach a chance -- because the State could have appealed my actions right away, and there's a good chance that the result would have been this young man, in shackles and leg irons, would have been off to Texas.

In the instant case, the third element is missing. The State is before us pressing an appeal of the circuit judge's action; we must apply the cold letter of the law. By law, I must concur.

I think that the circuit judge probably had a good handle on this situation. While making no claim that the defendant is an angel, the underlying offenses relate to worthless checks. I think that the State could have told the folks in South Carolina, let's just hold off and see if we can work something out that will satisfy you folks and avoid the extradition. Perhaps South Carolina would have allowed Ms. Nelson to do her time in Logan County. I have done that, too.

This matter could have been resolved with substantial justice to all parties had the State allowed the wisdom of a local circuit judge to take its course.