By Bobby Bordelon\r\n\r\nThe defense for Carl Rich filed a motion for a new trial in the Greenbrier County Circuit Court under Judge Robert Richardson, with a Thursday, September 17 hearing presenting arguments both for and against setting a new trial.\r\n\r\n\u201cThis is a zebra of a case if there\u2019s ever been one,\u201d said defense attorney Grady Ford.\r\n\r\nRich was indicted on a murder charge in October 2018 after shooting Jay Booth with a compound bow, ultimately resulting in Booth\u2019s death. After a November 2019 trial, Rich was convicted of voluntary manslaughter by a jury. Two major points led the defense to file for a motion for new trial \u2013 the recusal of Judge Jennifer Dent and the impeachment of a prosecution witness.\r\n\r\nDent served as a judge during the Rich trial but subsequently recused herself from a secondary trial around potential recidivism sentencing, potentially leading to life imprisonment. Dent allegedly participated as part of the prosecution for one of the previous offenses under which Rich could potential sentenced under. Although Defense Attorney Paul Detch noted that if the matter was put before the parties, it was likely neither would have serious objections, he said her recusal brought questions about if she should have heard the case at all.\r\n\r\nThe defense also cited case law around the State v. Collins opinion from the West Virginia Supreme Court, which found \u201creversible error was committed in the use of the prior inconsistent statements\u201d resulting in the reversal of \u201cthe defendant\u2019s conviction\u201d and remanding \u201cthe case for a new trial.\u201d\r\n\r\nDuring the Rich trial, Harold \u201cLittle Frankie\u201d Bailes testified. Before the trial, Bailes entered into an agreement with the state to tell the \u201ctruth\u201d on the witness stand. The differences between Bailes testimony and his initial statements to police and a pretrial interview with the prosecution led Via to move to impeach him, a method of challenging the credibility of a witness\u2019s testimony, despite his being a witness for the prosecution.\r\n\r\nAccording to the initial criminal complaint, Bailes described the event to police, but also said \u201c[Rich] threatened to kill him and his family if he told anyone what happened\u201d as they were leaving the crime scene and while he drove Bailes home. This part of his initial statement to police would be recanted while he was on the stand, where he stated that Rich did not threaten him. According to his testimony, Rich returned Bailes to Belburn and apologized to him for \u201cwhat had happened.\u201d Another point of difference was whether or not Rich locked a door, speaking to possible pre-meditation.\r\n\r\n\u201cI think, importantly, the locking of the door is perhaps the most important of all of those statements of facts,\u201d Ford said. \u201cThat occurred before the shooting occurred. \u2026 It goes back to premeditation. \u2026 A new trial is the only remedy we have to correct these things.\u201d\r\n\r\nThe defense contents the state used the initial, unsworn, statement provided by Bailes and some pre-trial interviews with the prosecution, set what the prosecutions viewed as \u201cthe truth.\u201d Then, when Bailes testified differently while at trial, his impeachment on those grounds was the state getting to \u201cpick and choose\u201d what part of his testimony was true.\r\n\r\n\u201cThe problem we have is that it turns out that the state was using those statements as the control by which they were going to measure Bailes\u2019 testimony,\u201d Detch explained. \u201cWhich means it was not a deal to tell the truth. It was a deal to stay on script. And when he went off script, the state \u2026 [took] retaliatory measures by canceling the plea agreement. We\u2019re going to let him go to drug court or do something else but we contend that was as admission that he was not telling the truth. \u2026 There were a number of things they could have done \u2013 they could have charged him with perjury but they haven\u2019t.\u201d\r\n\r\nAlthough the prosecution revoked Bailes\u2019 deal after the trial, he was granted a pre-trial diversion program for the indictment the deal would have affected. Via noted that if a new trial were deemed necessary, he would be subpoenaed. In addition, the recent expected reduction of charges against Nakiska Brown, another potential witness in the case, were brought up by defense.\r\n\r\nThe defense further explained a further investigation into evidence introduced to the jury during the impeachment could have been prejudicial.\r\n\r\n\u201cWe believe the jury should have been properly instructed [that] Mr. Bailes is testifying today and he gets a felony dropped if he stays on script,\u201d Dent said. \u201c[This not being done] deprives Mr. Rich the ability to have effective assistance of counsel \u2013 how can I cross examine somebody who is basically having to look back and stay on script to keep his deal [rather than] telling the truth. I submit, your honor, that this deal they made casts a long and dark shadow over the trial.\u201d\r\n\r\nPushing back, Via noted that the deal between Bailes and the state was \u201cno different than what we do all the time\u201d over the course of the trial. When Bailes testified \u201cinconsistently with the statement he provided on a pretrial basis,\u201d the impeachment came as a result. In addition, the introduced impeachment evidence, Bailes\u2019 initial statement to police, was \u201cspecifically\u201d quoted, rather than provided to the jury in full, in order to explain the difference between his sworn testimony and previous statements.\r\n\r\n\u201cThere was no script,\u201d Via said. \u201cWe did use the facts provided by Mr. Bailes.\u201d\r\n\r\nAfter the trial, Bailes volunteered to give a sworn statement to the prosecutor\u2019s office and Bailes \u201cknocked [Via] out of my chair\u201d with the things he was told. Bailes allegedly told Via he was \u201cdishonest at trial\u201d because he had been threatened by Rich while they were incarcerated at the Southern Regional Jail together. However, after an investigation, the allegations were deemed not actionable by the prosecutor\u2019s office.\r\n\r\nThroughout the hearing, both parties had to occasionally stop and repeat themselves for the court reporter, who attended virtually in order to minimize the number of people in the room due to COVID-19. Dent, Ford, and Via each thanked the reporter for their patience with the set up and complimented their efforts.\r\n\r\n\u201cI want to thank counsel for the thoroughness for you preparations and presentations today,\u201d Richardson said at the end of the hearing. \u201c... I appreciate your patience in dealing with our efforts to minimize the number of persons in the courtroom.\u201d\r\n\r\nThe case will be further heard in the Greenbrier County Circuit Court under Richardson, with a hearing set for October. At that time, a potential trial will be considered, although as of press time September 24, it is uncertain if the trial to be expected is to determine a potential life sentence under recidivism guidelines or to truly determine guilt in the first place.