The murder trial of Jonathan Cole McClung was delayed by COVID-19.
McClung was indicted in November 2020 for the murder of James Aubrey Alvis III. A trial was scheduled for January 24, with a pretrial status hearing taking place Thursday, January 13. However, the trial was expected to be delayed before the hearing.
“I would note that the COVID-19 situation in Greenbrier County is at a high level,” said Greenbrier County Circuit Court Judge Robert Richardson. “Under the court’s general approach to requiring jurors to appear, requiring witnesses to appear, the court has generally not proceeded with trial where the COVID-19 transmission is anywhere close to where it is right now. I am not inclined to proceed with a five-day jury trial under the circumstances that we have here. … The [current] level of COVID-19 transmission is near, hopefully, a peak. It’s at or near an all time high in the county.”
Before the hearing, McClung filed a request that the trial proceed as previously scheduled or that he be granted bail. Though agreeing with Richardson that there is not a constitutional issue at hand in rescheduling, Defense Attorney James Robert Milam II explained the filing.
“The only thing is, I don’t know how this COVID thing [will] play out a couple of years down the road,” said Milam. “If it gets worse, … I just want to preserve a record we’re trying to go to trial at this point.”
Richardson explained that COVID-19 would not need to be “eradicated” before holding a trial.
“I have personally presided over four jury trials during the COVID-19 pandemic,” Richardson said. “We have been fortunate to have scheduled those trials where the transmission rate is significantly lower to where it is right now. … To the best of my knowledge, there’s not a single case of transmission through court proceedings in the circuit.”
The hearing then turned to potential bond. The defense’s argument depends on the differing sentences between first degree murder, second degree murder, voluntary manslaughter, and involuntary manslaughter.
“We have an array of possible verdicts in this case,” Milam said. “I have to believe, based on the evidence, that my client is very likely to receive a verdict of involuntary manslaughter at trial. … if you look at the evidence, like we’re was supposed to, in the most favorable light to the state, I still don’t think there’s any evidence that you can even make an inference of any premeditation … to make this a first degree murder or capital offense.”
Greenbrier County Prosecuting Attorney Patrick Via, later in the hearing, highlighted this argument.
“In a matter of candor, however, I will state that, based on our review of the evidence, I would believe that a first degree murder conviction is not as likely as one or more of the lesser included offenses,” said Via. “I should say that, because I believe that to be the case. However, we have made no decision yet as to whether we could be asking the court to eliminate any consideration at this point from the jury.”
If involuntary manslaughter is the ultimate verdict, it would carry a sentence of confinement “not to exceed one year,” according to the West Virginia State Code.
“I believe that my client could be serving unnecessary time,” Milam said. “My client has been incarcerated now for almost 14 months consecutively and, prior to that, he had no criminal history. We understand, of course, this is the most serious of crimes against a person. … We would ask the court to consider some type of bond in this situation.”
Despite the acknowledgement, Via argued against bond on other grounds.
“We still believe this constitutes an active murder prosecution,” Via explained. “It was clearly a violent offense, without any question of a doubt, and … the finding of this court to date [is that] bond is not appropriate for matters of community safety. There is no indication at this point that it would be appropriate to revisit the question of bond in the matter, and that is the state’s position.”
Richardson denied the motion for bond, citing the first degree murder indictment, stating “a modification of previous orders regarding bond is not appropriate.”
Richardson then rescheduled the trial to the end of February, running into early March. He also looks to call over 60 potential jurors and keep several alternates, in case of symptom emergence during the trial.
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