Attorneys for some of the former Mingo County officials being sued by a private investigator say there isn't any evidence against their clients and have asked a judge to dismiss the claims.
Kanawha Circuit Judge Jennifer Bailey heard arguments last week about why the lawsuit filed by private investigator Donald Stevens should be dismissed against former Mingo prosecuting attorney Michael Sparks and former Williamson police chief Dave Rockel.
In the same complaint, filed in October 2014, Stevens also sued former Mingo circuit judge Michael Thornsbury, the city of Williamson and the Mingo County Commission over claims that the officials cooked up charges against Stevens because they thought he was investigating then-Judge Thornsbury.
A trial is set for Nov. 16. But attorneys for the defendants want the case thrown out before then.
Sparks' attorney, Gary Pullin, told Bailey during a hearing Thursday that his client should be protected from being sued because he was acting in his official capacity as a prosecutor at the time of the allegations.
The attorney also argued that Stevens' lawsuit was filed as a ploy to tack on more allegations to the federal charges Sparks and Thornsbury pleaded guilty to in federal court last year. Those allegations don't involve Stevens.
Pullin also asked the judge to disregard a letter from the U.S. Department of Justice stating Stevens had been the victim of a crime, deprivation of civil rights, by Sparks. Stevens attached the letter to his lawsuit.
The judge last week seemed to agree with Pullin's questions about the relevance of the letter since Sparks was never charged with allegations against Stevens.
"I don't really know what you expect me to do with this," Bailey said to attorney Dave Barney, who represents Stevens along with attorney Kevin Thompson.
Sparks and Thornsbury were sentenced to prison last year after admitting to allegations involving another man, George White.
Thornsbury pleaded guilty to conspiring to deprive White of his constitutional rights, a felony, while Sparks pleaded guilty to the misdemeanor charge of actually violating White's rights. As part of a deal with prosecutors, Thornsbury and Sparks agreed to step down as judge and prosecutor, respectively, and never run for office again.
Thornsbury is still serving a 50-month prison sentence. Sparks was released from prison last month after serving a year.
Stevens' lawsuit claims that at Thornsbury's behest, Mingo officials had him arrested and gave him the choice of going to jail or signing an agreement saying he would move his investigation business out of Mingo County.
He is suing for, among other things, lost business opportunities, moving costs and damage to his reputation. He also wants punitive damages.
Stevens' lawsuit alleges that because Thornsbury believed Stevens was investigating him, he ordered former Mingo sheriff Eugene Crum, who was a special investigator for the county at the time of the alleged events, to frame him for the possession of an illegal wiretap.
Crum and Rockel used information they allegedly knew was false, according to the lawsuit, to charge Stevens with wiretapping and conspiracy and attempt to possess an illegal wiretap.
After Stevens was arrested, he and Sparks signed a pretrial sentencing agreement - even though Sparks knew Stevens wasn't guilty of any crime, the lawsuit alleges. The agreement says the charges would be dropped if Stevens "ceased to operate a private investigation business principally in Mingo County."
Stevens agreed because, he said, he knew he wouldn't get a fair trial.
On Thursday, Thornsbury's attorney, Philip Sword, said he was waiting to file his motion for summary judgment asking Bailey to dismiss the claims against his client until he interviews Jane Moran, the Williamson attorney who represented Stevens when he signed the agreement.
Crum was shot to death in April 2013 in downtown Williamson. James Smith was appointed to take his place as sheriff, after Crum's widow, Rosie, stepped down as interim sheriff.
Rockel left his position as chief of the Williamson police department and joined the sheriff's department after Eugene Crum's death while his widow was sheriff. He was fired by Smith, but has not been charged by federal prosecutors.
In addition to the argument made by Rockel's attorney, Billie Jo Strayle, on Thursday that Stevens doesn't have any proof to back up the allegations contained in his complaint, Strayle called for the judge to let Rockel out of the lawsuit because Stevens' attorneys never bothered to interview her client.
The time limit on the discovery process in the case expired last month, Strayle said, after Barney asked the judge for more time to depose Rockel.
Although she didn't rule on any motions Thursday, it was clear the judge agreed with Strayle that Barney had missed his chance to meet with Rockel. However, the judge said, if Barney could present proof to contradict Strayle's claim that he never even tried to set a date to take Rockel's deposition, she would allow it to be held.
The judge said she's allowing Thornsbury's attorney to continue his efforts to depose Moran, because it's clear that all of the defendants' attorneys have been trying for months to meet with her.
Reach Kate White at kate.white@wvgazette.com, 304-348-1723 or follow @KateLWhite on Twitter.