Double Homicide Indictment In Question After Potential Law Enforcement Review of Emails

A motion to dismiss a first-degree murder indictment is on the table due to potential law enforcement use of attorney/client privileged emails during the grand jury testimony that led to the indictment.

In August 2020, Terri Storer was indicted on two counts of murder and Randy Barnhart was indicted on two counts of accessory after the fact to murder. This emerged from a shooting in Williamsburg that killed Jeremiah and Jennifer Thomas in 2019. Greenbrier County Prosecutor Patrick Via explained to The West Virginia Daily News before the indictment that the dispute consisted mainly of who should have access to a piece of land often used for hunting.

The case has seen a long list of motions hearings, including determinations on the police interview from the night of the shooting, allowing a 3D mapping technology into evidence, COVID-19 restrictions, the allowance of a $500,000 bond with home incarceration, a motion for “cause and suppression,” and now a request to have the indictment dismissed.

Although the Friday hearing was originally set to determine another motion, concerning “the motion to show cause and for suppression,” Via noted “we have resolved that motion” before Circuit Court Judge Robert Richardson inquired into the length of the case.

“I am somewhat frustrated, counsel, by the fact that this case continues to drag,” Richardson said. “One example of that is a motion being filed on the eve of a hearing where I’ve set aside an entire afternoon to hear the motion. … I think we’re missing an order, perhaps a couple of orders from hearings over the past few months. … Counsel, are we just seeing how long this case can be drawn out? What’s going on here? Why isn’t this case moving more properly?”

Defense Attorney Jodie Wooten noted the case was previously set for trial, saying “our resources are finite” and “frankly, I’ve never had a case where we dealt with some of the issues we have here. … I assure you, we’ve worked the case, we’ve prepared, but we’ve got a budget, … we’ve got experts in the case, juggling all that is tough.”

However, the hearing turned when Richardson inquired into a motion to dismiss the indictment, filed by the defense the day before the hearing. This motion relates to emails between the defense and their attorneys given to law enforcement by Google during discovery.

Via explained “Certainly some of the emails were observed and read by law enforcement. There are obviously hundreds, maybe even thousands of emails that aren’t really problematic here. I would hesitate to say what they did or did not read from emails that were protected [by attorney client privilege].”

Greg Campbell, Barnhart’s defense attorney, explained the defense’s concerns.

“It seems to me that the motion states quite clearly police misconduct. … You have an officer that’s got my records, [defense attorney] Jodie [Wooten’s] records, and [defense attorney] Brandon [Johnson’s] records from our phones. They sat on them, for a long time, until they were discovered. … We feel that, not the prosecutor, but [the officer testifying during the grand jury indictment proceedings], goes on and on and on before the grand jury of how experienced of a police officer he is, … but yet he’s sitting on top of our records with all kinds of information. In our position, that should not be allowed.”

When asked what harm could have occurred by law enforcement reading the emails, the defense noted “I think there’s information that was presented to the grand jury that came from those communications. Very detailed, specific information. Judge, at least one of these emails goes into detail about the events. … It’s kind of a line by line of what occurred.”

How long has the information been available? Via explained “our certificate of service for the discovery packet that contained the Gmail search warrant results was filed with the clerk on August 28 of 2020. … The specific problematic emails, frankly, just were brought to my attention by defense counsel. … As for my office, we have not yet even opened the electronic box, so to speak, that contains these emails. Suffice to say I haven’t seen any of it. … Obviously law enforcement was in receipt of the return of the search warrant, and it was supplied to us.”

The defense noted they did not realize the emails were included in the discovery in August 2020.

Richardson asked counsel “consider what the appropriate remedy would be,” saying “having an indictment dismissed is a pretty tall order.”

“If the court determines there was material that was improperly presented to the grand jury because it was obtained as a result of an intercept, whether intentional or inadvertent, of attorney client communications, [and] the balance of the evidence presented to the grand jury is sufficient to sustain an indictment, I think the indictment is sustained and the matter proceeds,” Richardson said. “I’ll give [defense counsel] the opportunity to argue to the contrary. … If the indictment is not dismissed, or if your motion is sustained which would lead the state to file a new proceeding and present it to a grand jury without the offending information, … I would encourage counsel … to consider if there has been a violation, whether there is a risk of violation going forward.”

A hearing was set to consider the dismissal. Via noted that he would secure the relevant officers, noting it included lead investigator, Trooper Borsman, and the detachment commander Sergeant Steve Murphy.

“Counsel, you may have given some thought about how you’re going to examine Trooper Borsman on this issue,” Richardson said. “If you say have you seen this email, show him the email, and his answer is no, not until now, what does that do?”

“That’s why we think we should just dismiss it,” responded Wooten.

“Nice try,” Richardson replied.

“It’s fraught, your honor,” Wooten continued. “We didn’t take this motion lightly. … At some point, you’re going to have to evaluate it and it’s your decision.”

Richardson also noted “before we can conclude today, I’m going to identify some weeks and it’s going to be a trial in one of those weeks. You’re going to need to work with your experts to clear off their schedules, if necessary, but at the rate we’re going this case won’t be tried until 2024. I’m not going to permit the matter to drag on. … [This] is a case [from] events that are alleged to have occurred well over two years ago, and it’s time for there to be a resolution.”

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Comments 1

  1. Joy says:

    Pat lost the trial. Jury deadlocked, so a mistrial was called. There was enough reasonable doubt to cause a hung jury.
    Randy’s case was dismissed in September 2022.

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