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WSAZ Investigates | Justice Delayed

WSAZ Investigates | Justice Delayed
Published: Apr. 18, 2022 at 6:49 PM EDT
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HUNTINGTON -- Jury selection, followed by opening arguments Monday, were more than four years in the making for Antwon Starkey and the family of the man he stands accused of gunning down Dec. 12, 2017, at a convenience store in Huntington.

Police arrested Starkey hours later that same day, and he has been behind bars awaiting trial ever since -- more than 1,500 days.

Monday’s trial finally received the green light to begin earlier this month, April 7, after being delayed 14 times.

The green light came when Cabell Chief Circuit Judge Greg Howard denied the prosecution’s request for a 15th delay, all that happening days after WSAZ NewsChannel 3 scoured through court records and asked to speak with Howard about how court cases move through the system.

“I’m going to deny the motion. I’m going to keep the trial on,” Howard ruled April 7. “Because of the length of this case, pending. And now that there is an objection, and the defendant is not willing to waive into the next term of court, I do find it important to proceed in this term.”

“With all due respect with the family, they do deserve justice,” Starkey told the court April 7. “But know what I’m saying, my family is waiting too. We tired.”

WSAZ started with Starkey’s attorney, Abe Saad, who according to court documents requested nearly every delay in his client’s case.

“This case seemed to every time we thought we were about to do it, a new piece of evidence would show up or somebody was unavailable, who we really needed to try this case,” Saad told WSAZ Investigative Reporter Curtis Johnson.

“Who’s to blame for that?” Johnson asked.

“It’s a good question. It’s a very good question,” Saad replied. “I know who’s not to blame. I am not to blame.”

Saad said not receiving evidence from the state in a timely manner and not setting deadlines or enforcing deadlines, like other counties do, are the biggest issues tying up cases like Starkey’s for years on end.

“When I show up on the first day, they have a packet of discovery ready on the very day of the arraignment,” Saad told Johnson. “They hand it to you, which includes the grand jury transcript, and all the discovery. We do not do that here. We need to do that here. So there’s items that we request that other counties, you don’t have to request, it is given with discovery.”

“Is that a prosecution failure there?” Johnson asked.

“I don’t know if it’s the court, prosecution or what, but there is a system in place here in this county, which yields more delays than I think our neighboring counties,” Saad replied. “I know that if you don’t get a case ready for trial within six months, in some counties, you will be admonished very strongly on the record.”

Cabell County Prosecutor Corky Hammers disagreed.

“Why’s that not done here in Cabell County? Or is it done?” Johnson asked.

“We do,” Hammers replied. “We provide discovery packets in a lot of our cases, at arraignment.”

“How many or what percentage of those cases you think, roughly,” Johnson asked.

“We don’t keep percentages. I know the last time,” Hammers said.

“But it’s not all cases?” Johnson followed.

“It should be almost all cases. Yes,” Hammers said.

However, WSAZ reached out to several additional defense attorneys in Cabell County. We heard back from four, who all agreed they do not typically receive discovery packets at arraignment, and some pointed out they do receive them in other counties.

So WSAZ started searching jail booking records. The research, compiled March 28, found 168 felony inmates have sat behind bars for more than a year, awaiting trial across West Virginia.

Nowhere was the number higher than Cabell County, where WSAZ found 19 sitting in jail for more than a year.

Four of the Cabell County inmates -- including Starkey -- have been waiting for at least three years.

Further research found that West Virginia state law requires a felony case to be resolved within roughly one year of indictment.

But the state Supreme Court also has a rule that felony cases should be resolved within eight months of indictment.

Statewide, Supreme Court statistics show 57% of cases closed in 2021 met that eight-month standard.

WSAZ also obtained the latest month of court records available for Cabell, Putnam and Kanawha counties.

That revealed just 39% of Cabell County cases closed in March met the eight-month standard -- compared to 67% in Putnam County.

Kanawha County only had records available for February, but those records show 70% of its closed cases for that month met the standard.

A state Supreme Court official said drug court referrals and fugitives can affect those numbers, however, those same issues are not exclusive to Cabell County.

“Every indication is the numbers that are presented to you are the exact same in every county with the same concerns with regards to drug courts, open arrest warrants, so on, so forth,” Johnson asked.

“That’s, that could very well be the case,” replied Lisa Tackett, director for the state Supreme Court of Appeals’ Division of Court Services.

Howard said the time standard is rarely discussed.

“In all of my years of being a judge, I’ve never heard anyone talk about a time standard,” he said. “I’ve been to the Supreme Court trainings for years, they’ve never talked about a time standard. So whatever somebody may have put into, into the legal system as an artificial time standard or a guide to try to get things work through. I’m not going to stick to that. I’m going to do what I need to do to protect the community from somebody that I think is unsafe, while also not violating their constitutional rights to get to trial.”

Hammers indicated he had never heard of the eight-month time frame.

“What’s that standard?” Hammers asked Johnson.

“Standard set by the state Supreme Court with the idea of eight months,” Johnson replied.

“Well, that’s not a statutory standard where by cases get dismissed.”

But along with the numbers, WSAZ wanted to know why resolving a case can take so long.

That led to a deeper look at Starkey’s case file and those of other cases languishing for years.

The research revealed Starkey’s 14 postponements, but at least he got a trial date. WSAZ also discovered two of the Cabell inmates received no trial date for eight months to a year after indictment.

Within Starkey’s case file were numerous reasons for delay. The reasons included three psychological evaluations, all sought within three weeks of trial, along with extensive arguments over expert testimony from late 2018 to 2019 and a new defense attorney in October 2019. Then, in February 2021, a defense motion alleged the late disclosure of evidence by prosecutors and noted Starkey’s need for a grand jury transcript from more than two years earlier.

WSAZ then traveled to circuit clerk’s offices in Putnam and Kanawha counties. If not for a lack of jurors in one recent case, each of the homicide cases WSAZ reviewed would have been resolved within a year and five months of their respective killing. A consistent theme -- deadlines for motions and responses and a set trial date.

Saad said he believes that helps push a case forward.

“I think that should be a standard of every courtroom across the entire state,” he said. “I think that, that is a wonderful system. And I really liked that system. That would help streamline it.”

Howard disagreed, saying it amounts to judicial strategy.

“If use if you take a murder case and set artificial deadlines, several months in after indictment and say, ‘All of your motions have to be heard by this day, and then we’re having the trial on this day,’ it’s just not realistic,” he said. “I would be very shocked to and will be happy to look at any example of a murder case or a serious case where that has been done in another county, because these cases take time for both parties to prepare.”

One of the Putnam County inmates provided unique perspective -- murder charges in Cabell and Putnam counties.

Both indictments were filed were filed last summer.

In Putnam County, the court set deadlines and a trial date at arraignment. Prosecutors then secured a guilty plea in February 2022, less than eight months post indictment.

Meanwhile, in Cabell County, it took four months to set a trial date.

Hammers and Howard said rarely can a murder case be resolved in less than a year. They also cited COVID and the unavailability of a state medical examiner due to an extended illness, yet again, those issues were not exclusive to Cabell County.

In another case, WSAZ found an assistant prosecutor’s motion that raised questions about case oversight within the Cabell County Prosecutor’s Office.

That motion recalled the retirement of a lead prosecutor in July 2020, noting the retiree’s successor was not assigned the case until September -- potentially three months without a lead prosecutor, in a murder case that already had endured more than two years of delay since indictment.

Hammers said the hand off was seamless and any delay was of no consequence.

“There was no action that needed to be taken on that case in that time,” Hammers said.

“The case had already been delayed for two years since the indictment. How can that be?” Johnson asked.

“How can what be?” Hammers replied.

“How can it be that there’s no action necessary in the case? He’s been setting in the jail for two years,” Johnson asked.

“Well, there’s no there’s no trial,” Hammers answered. “There was no trial date set. So that’s not unusual at all. That a case sits awaiting awaiting trial.”

Jail costs can be another concern. For instance, WSAZ found Cabell County’s four longest pre-trial, felony jail stays had amassed more than 4,200 days of incarceration at a cost of more than $200,000 to local taxpayers.

Hammers and Howard suggested the impact was minimal given that county taxpayers footing the bill for pre-trial incarceration, would continue paying those same inmates via state taxes should convictions with prison time occur.

“Right,” Hammers said in response to four inmates amassing more than 4,200 days of incarceration at a cost of more than $200,000. “Again, that’s really of no significance to my office, because those individuals are going to be incarcerated in the jail or they’re going to be post conviction in the prison system. So the taxpayers are gonna pay for them. Regardless.”

Both men touted a 30% reduction in Cabell County’s regional jail bill. Howard pointed to statistics showing the average monthly bill dropped nearly $100,000 over five years. He said that’s a credit to broader use of alternative sentences and home confinement.

“My overriding goal as a judge is to protect the community, and to make sure that I’m not violating any constitutional rights of a defendant,” Howard said. “As long as I’m doing those two things, then that’s what’s paramount in my mind.”

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