Slap-happy Justice in West Virginia

I confess: I love this story.

The Charlestown Gazette reports that Assistant Kanawha County prosecutor Stewart Altmeyer has been suspended for one month without pay for suggesting a plea deal that permitted the victim of petit larceny to slap the defendant in exchange for dropping the complaint against Dallas Jarrett, who had allegedly taken a few Oxycontin pills from Deborah McGraw’s medicine cabinet while performing some household repairs for her.

Altmeyer says that he relayed McGraw’s offer half-seriously, and was taken aback when the one-slap deal was accepted by Jarrett and his attorney. He shouldn’t have been surprised: Jarrett was facing up to a year in prison. I’d take Deborah’s slap. Heck, I’d take a Mike Tyson slap. Wouldn’t you?

The problem is that enforcing the deal was an abuse of power. Physical battery is illegal, and a prosecutor doesn’t have the authority to approve it, even if both batterer and batteree consent. This could easily get out of hand, after all.  If a victim can bargain to slap a defendant, why not allow other physical acts? Shave his head, spit in his face. Force him to have sex, or dress up like Little Bo Beep.  20 lashes. Merciless tickling. The possibilities are limitless.

Apparently the West Virginia Bar will also get to decide whether further discipline is warranted for Altmeyer. The deal is a clear violation of West Virginia Rules of Professional Conduct 8.4 (d), prohibiting conduct prejudicial to the administration of justice. But what of assistant Kanawha County public defender Katherine Kessell, who accepted the slap offer on behalf of her client? Was she unethical as well?

A strong argument can be made that accepting an unethical plea bargain is as unethical as offering it, even when it clearly benefits a lawyer’s client. As a former criminal defense attorney, however, I confess that I would have jumped at the offer, and told my client to do the same. The primary duty of an attorney is to represent her client’s interests, and the deal, outrageous as it was, was obviously a great one for Dallas Jarrett. The West Virginia Bar should make it crystal clear that such creative uses of vengeance in the legal system won’t be tolerated, but the way to do that is to punish the source, prosecutor Altmeyer. No defense attorney should be put in the position of having to choose between a suspension and turning down a beneficial offer for her client.

I think her best response would have been to accept the offer, and report the prosecutor to the Bar as soon as the charges were dropped.

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