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In lieu of termination: Tracking WV police officers after misconduct incidents

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Tuesday, May 28, 2024   

By Kyle Vass for Dragline.
Broadcast version by Nadia Ramlagan for West Virginia News Service reporting for the ACLU of West Virginia-Public News Service Collaboration

Anthony Reese was walking down the street in Dunbar one day when a stranger began cursing at him out of nowhere. Confused, Reese began speaking with the man. “Don’t you know who I am?” he asked of Reese.

Reese told the man that he looked like a police officer for the city but wasn’t sure. Over the past few years, Reese had encountered a number of Dunbar Police: a couple of (dismissed) domestic charges, an eviction, a trespassing ticket. But out of uniform and standing in the parking lot of a tire shop, Officer Todd Hannah wasn’t immediately recognizable to Reese. 

According to Reese, Hannah identified himself and accused him of being a known criminal – someone he had been keeping an eye out for around town. The two men began to argue when Hannah said to him, “I’m going to see you back in jail and I’m going to knock your teeth out.” 

A few weeks later, Reese went to the Dunbar Police Department to report his run in with their officer. When Reese left the building, he saw Hannah – this time in uniform. And, according to the surveillance video that would later be submitted as evidence in a lawsuit against Dunbar, Hannah switched off his body camera, approached Reese and ordered him to put his hands behind his back.

Moments after handcuffing Reese, Hannah picked him up and slammed him to the ground. Then, six other officers joined Hannah, beating Reese for two minutes before arresting him, according to a complaint. While Hannah didn’t manage to knock Reese’s teeth out, he did put him in the hospital, his face bloodied and swollen from the beating. The lawsuit resulted in a settlement with a $2 million payout to Reese from the city. 

An internal investigation later revealed Hannah had violated department policies five times in his violent arrest of Reese. And while he lost his job with the department, he was never fired. In fact, public records obtained by Dragline from the West Virginia Law Enforcement Professional Standards Program showed Hannah began working for the nearby town of Marmet while still under investigation over the incident in Dunbar.

According to the report from the Professional Standards Program, Hannah “resigned under investigation” from Dunbar Police on Sept. 9, 2023, where he began immediately working for the Marmet Police Department. The Town of Marmet hired Hannah on Aug. 22 - or 25 days before he left Dunbar in disgrace.

Because Hannah resigned under investigation, his certification was revoked. To get it back, he (and any officer in a similar situation) had to come before the Professional Standards Program’s subcommittee: a twelve-person panel (nine officers and three civilians) that reviews police certifications.

While many officers who come before this subcommittee do so for basic renewals or clerical reasons, every officer who leaves their department on bad terms is investigated. Departments may provisionally hire officer whose certifications have been deactivated over misconduct while they await a determination from the subcommittee. But officers without an active certification have to be supervised at all times by an officer in good standing with the committee.

While this review process has been around for decades, it’s only since August 2021 that the program has recorded narratives about departures. Since that time, 62 percent of all applicants have had their certificates reactivated. 

At the January 2024 subcommittee meeting, officers and a handful of attorneys entered a standalone building on the grounds of the West Virginia State Police Academy. About 40 people convened in a training classroom one program staffer referred to as “The Corral.”

The harsh office lighting and dropped ceilings of this room did little to lower tensions. Those gathered chose to pace the length of the classroom or line its painted cinder block walls while waiting on their turn in front of the subcommittee.

This reporter made his way from the Corral across the hall to observe the subcommittee but chose the wrong chair to sit in.

“You don’t want to sit there,” a uniformed subcommittee member said with a smile. “That’s the hot seat. That seat is for the people who have to come before the committee today.”

The open meeting portion of this day-long event only lasted about 15 minutes. After approving a few budget items, the group went into executive session. All of the officer reactivation hearings happen behind closed doors.

But the results of these subcommittee reviews and the evidence presented to them are public record. To bring these records to light, Dragline has compiled an interactive map of the Professional Standards reports since August 2021. The map includes details the program’s findings and the where these officers have transferred to and from. 

In addition to Todd Hannah, officers who have sat in the hot seat and come out the other end still a police officer include Craig Cross. Cross resigned under investigation from the Barbour County’s Sheriff’s Department for physically assaulting a subordinate at a K-9 training event in Ohio.

The report states that Cross – who was never charged with a crime despite the report saying he “violat[ed] several WV statutes" – began working for the Belington Police Department one week after resigning under investigation over the incident. Since then, Cross has changed departments again, and is now working for the Weston Police Department – his third department in under a year.

In 2017, Cross made headlines when he resigned as Chief of the Elkins Police Department amid controversy for issuing an internal memo advising officers to use violence on “cockroaches” or anyone they suspected of using drugs.

Also greenlit by the subcommittee: Michael Newcomb who resigned over “several policy violations including evidence missing from the evidence room” and Caden Tallman who “was involved in a domestic situation with his girlfriend on 4/3/2023 where he allegedly put a firearm to his head.” 

Tallman was hired by the Pleasants County Sheriff’s Department a little over a month after the gun incident. Newcomb was hired by the Romney Police Department 26 days before leaving his old department.

While the subcommittee has reactivated officers with serious allegations replete with evidence of wrongdoing, program director Jess Gundy said the subcommittee and program staff take their work seriously.

“We abide by the legislative rules and the state code to try and keep an eye on everything as well as we can,” Gundy said.

To the program’s credit, the subcommittee denied the recertification request of 14 officers since August 2021 – 38 percent of requests involving misconduct. Three of these officers even faced criminal prosecution over their misconduct. 

The other eleven officers who did something egregious enough to lose their job and fail a Professional Standards review still got to bypass the same criminal justice system they once represented. 

One such case was former Berkeley County Sheriff’s Deputy Deven Morris who “resigned in lieu of termination” stemming from an investigation into allegations that he sexually assaulted a minor.

The subcommittee report for Morris referenced an investigation done by the West Virginia State Police Internet Crimes Against Children Program.

“The internal investigation also revealed there was enough evidence to suggest that Devin [sic] Morris did violate WV Code 61-8A-2 regarding the distribution of obscene matter to a minor and WV Code 61-3C-14b regarding the solicitation of a minor via computer.” 

The report also said that Morris “also failed a polygraph examination when questioned about aspects of the investigation.” 

While the subcommittee denied Morris’s application for recertification, no criminal charges were ever filed against him.

According to the report: “The Morgan County Prosecutor [Dan James] declined to prosecute Devin Morris due to conflicting statements made by the 15-year-old victim in regards to whether the two had engaged in a sexual relationship.”

When reached for comment, James said one of the reasons his office didn’t prosecute Morris “was based upon conflicting statements” made by the child. When asked for more information, James said, “I will not elaborate on the other factors.”

Records obtained by Dragline from the State Police investigation show the child’s story remained consistent across multiple interviews with Sgt. See, the State Police investigator assigned to the case. 

Missing from the prosecutor’s response and Professional Standards report was the relationship between Morris and the child’s parents. Sgt. See reported, “[The child] advised that she has known Deven Morris since she was about nine years old and he is related to her stepfather.”

The State Police report stated that the child’s mother contacted State Police and attempted to call off the investigation, telling authorities it was a “misunderstanding” and that her child wanted to recant the allegation against Morris – her husband’s relative. 

But, according to Sgt. See’s report, the child “advised that was not the case” and “maintain[ed] the original statement she made back in July 2020.” Sgt. See’s reporting concluded with her gathering evidence from the child’s phone about her claims and scheduling a meeting with Morgan County Prosecuting Attorney Dan James.

When reached for comment, James said he had deleted all records of the State Police investigation from his email. When Dragline provided James with copies of the State Police investigative file, he declined to show where he believed the child made conflicting statements.

While the case of Deven Morris was the most troubling narrative in the Professional Standards reports, the documents had no shortage of disturbing accounts of police misconduct in the state, especially among officers who failed to achieve reactivation.

Other officers whose applications were denied included Andre C. Cosby who was allowed to resign from the Grafton Police Department “in lieu of termination” over an incident where an investigation found he was “in violation of [W. Va. State Code] 61-8-30 that deals with photographing a deceased body with his cell phone and forwarding it to his girlfriend.” 

Simply being listed on it could result in officers’ testimony in current future criminal trials being considered unreliable.

Former Assistant U.S. Attorney for the Southern District of West Virginia Rachel Kincaid told Dragline the publication of this dataset alone could have major implications for any case involving an officer listed. In particular, appearing on this list could call into question the reliability of their testimony in court. 

“If the reason that they resigned, or they had to apply to recertify goes to their credibility or trustworthiness, then that's absolutely information that defense counsel would want to have at trial in order to call into question the overall truthfulness of their testimony,” Kincaid said.

Kincaid, who now teaches constitutional criminal procedure at Baylor University, said, “The vast majority of criminal trials involve testimony by a law enforcement officer,” adding that the reliability of that testimony is often key to achieving a guilty verdict. 

“Any history of lying, could be used by defense counsel to call into question the truthfulness of the officer's testimony. That testimony is often integral to being proven guilty at trial,” she said. 

When prosecutors have information that shows a history of unreliability from an officer (or any evidence that tends to show the person isn’t guilty) they are required to give that to the defense. This evidence is usually referred to as Brady material — named after 1963 US Supreme Court Case that established this right.

In most states, this requirement for prosecutors to hand over Brady material only exists in the rare instance that a criminal case goes to trial (less than one percent of criminal cases). But in West Virginia, this obligation extends to plea negotiations based on West Virginia Supreme Court precedence, Kincaid said.

That means prosecutors have to hand over Brady material (including an officer’s history of misconduct) before criminal cases go to trial.

To ensure prosecutors are informed of these officers’ past actions, Dragline has sent this dataset to the West Virginia Prosecuting Attorneys Institute with a request that they share it with all prosecutors in the state. Dragline and the ACLU of West Virginia plan to work with the Public Defender’s Corp. of West Virginia to train defense counsel on how to use this information effectively.

The issue that can’t be assuaged with exculpatory evidence however is the trauma that haunts victims of police violence. Despite successfully suing and getting his attacker removed from a police department, Anthony Reese still has to live in fear of running into a uniformed and heavily armed Todd Hannah in nearby Marmet — a hotbed for disgraced police officers.

According to records from the Professional Standards program, Marmet (population 1,447) took in the most officers who were previously let go for misconduct. In under five years, the town has hired four officers who left their previous jobs over misconduct.

Multiple requests for comment to Marmet Police Chief John Perrine went unanswered.

It wasn’t until being interviewed for this story that Reese learned Hannah had been hired by Marmet. Reese said that’s one more place he’ll have to avoid.

“Thank you for telling me that,” he said. “Now, I don’t go to Dunbar and I don’t go to Marmet.”

Kyle Vass wrote this article for Dragline.

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