The Hearing Panel Subcommittee (HPS) of the state Lawyer Disciplinary Board held a evidentiary hearing Thursday to consider disciplinary recommendations for former Pleasants County Prosecuting Attorney Brian Carr, his former assistant prosecutor Paul Marteney, and others involved with the now-defunct Slow Down for the Holidays program. (Photo by Steven Allen Adams)

CHARLESTON — After years of delays, former Pleasants County Prosecuting Attorney Brian Carr, his former assistant prosecutor Paul Marteney, and several defense attorneys involved in the Slow Down for the Holidays program received a hearing regarding their disciplinary charges.

The Hearing Panel Subcommittee (HPS) of the state Lawyer Disciplinary Board held an evidentiary hearing Thursday at the West Virginia Judicial Tower in Charleston’s Kanawha City for Carr, Marteney, and trial lawyers Harley Wagner, Justin Raber, Jay Gerber Jr., Andre Richardson and Jordan West.

The cases against the seven attorneys were consolidated into one to simplify discovery requests. In a separate case, attorney Wells Dillon was admonished by the HPS and ordered to pay proceeding costs and undergo additional continuing education courses in ethics.

Both Carr and Marteney were charged in 2021 by the Investigative Panel of the Lawyer Disciplinary Board with multiple violations of the Rules of Professional Conduct for participating in the St. Marys Police Department’s Slow Down for the Holidays program. Carr alone was accused of 178 violations in 21 separate counts.

Beginning in 2008 when Carr was a municipal judge, the now-defunct Slow Down program would dismiss minor traffic infractions in the months prior to Christmas each year in exchange for donations of $50 gift cards or the equivalent of $50 in toys.

The Pleasants County Magistrate Court and the Pleasants County Sheriff’s Department became involved in the program in 2018 after Carr took office as prosecuting attorney, when he and Marteney began to dismiss certain misdemeanor charges, such as driving under the influence, in exchange for the donation of gift cards and sometimes cash to the Slow Down program.

State investigators said Carr and Marteney’s selection of only a few misdemeanor cases in exchange for monetary donations constituted a “bribe.” In her opening statement Thursday, Rachael L. Fletcher Cipoletti, Chief Lawyer Disciplinary Counsel for the state Office of Disciplinary Counsel, likened the scheme to a “holiday-themed banana republic.”

“This program likely impacted the Christmas story of many families in Pleasants County, (but) the undisputed facts state that Carr and Marteney hand-selected cases and offered to dismiss these cases for money to a program that operated without oversight,’ Cipoletti said.

Cipoletti argued there is no state law that allowed Carr and Marteney to circumvent the judiciary and State Code to create a secondary system of justice.

“As much as we try to dress this up with mistletoe…our system prohibits accepting cash for the dismissal of case,” Cipoletti said.

The cases against Carr and Marteney were paused in 2022 due to a federal investigation by the U.S. Attorney’s Office for the North District of West Virginia, though Carr’s attorney, Mike Benninger, confirmed Thursday that the investigation is closed. Marteney’s law license remains under suspension from a separate ODC case.

During his opening statement Thursday, Benninger argued that the Slow Down program was legally created by the St. Marys City Council and managed by the St. Marys Police Department with no direct involvement from Carr and Marteney. Benninger said that Carr had prosecutorial discretion to make deals with defendants in allowing them to participate in the Slow Down program.

“Banana republic? No, no, no,” Benninger said. “Brian Carr is no briber, no dishonest or distrustful person…This is a good community man. He was an extraordinarily respected prosecuting attorney.

“This program, through its governing body under the constitutional rights it had…chose without limitation to allow the police…to use their discretion to charge by citation,” Benninger continued. “Nobody was forced. Nobody complained. At all times, Carr acted in good faith. Carr did not personally benefit. He got no dime.”

The ODC began issuing charges against defense attorneys who accepted the Slow Down deals from Carr and Marteney at the end of 2022. The attorneys are accused of violating the Rules of Professional Conduct that govern the behavior of lawyers in the state. The ODC investigates attorneys, while the JIC investigates justices, judges and magistrates.

Cipoletti argued that the defense attorneys should have known better than to accept these deals with Carr and Marteney. However, Benninger argued that the defense attorneys were under legal obligation to present their clients with all options.

“These lawyers should have recognized the disposition of these cases,” Cipoletti said. “How much would it cost to dismiss a misdemeanor for battery? It’s a slippery slope when attorneys abandon the law.”

“These lawyers had the right to rely on Carr. It is our position that these lawyers did nothing wrong,” Benninger said.

At issue in the case is whether the Slow Down program was unlawful. Misdemeanor charges dismissed in Pleasants County Magistrate Court by Carr and Marteney included people passing stopped school buses, speeding, littering, possession of alcohol by minors and multiple offenses for driving under the influence.

“It is my client’s position that when Mr. Carr and Mr. Marteney made offers to these respondent’s clients…they had an obligation…to communicate timely, completely, and effectively those offers to their clients,” Benninger said. “Had they not done so, they would have been negligent. It was Mr. Carr’s expectation that they would communicate those offers to their clients.”

“We would stipulate they have an obligation to make legal offers to their clients,” Cipoletti said. “It is our position that those offers were not legal.”

“It appears all of these alleged violations occurred because there is a claim that this program is illegal,” said HPS Chairman William Munday. “If this program is legal, then everything goes away, doesn’t it?”

“If the program is determined to be legal, which it is not,” Cipoletti said.

“At some point, we’re going to have to rule on that,” Munday responded.

Former Pleasants County magistrates Randy Nutter and Lisa Taylor received public admonishments from the West Virginia Judicial Investigation Commission in 2021 after cooperating with an investigation into their participation in the Slow Down for the Holidays program. Both former magistrates agreed to resign and never seek public office again for any judicial positions.

Former St. Marys Police Department Clerk Carolyn Taylor pleaded guilty to perjury in 2022 for lying to federal investigators about taking gift cards from the Slow Down program for personal use.

The HPS will make a recommendation to the West Virginia Supreme Court of Appeals as to whether Carr, Marteney, and the defense attorneys will face disciplinary action or whether the ethics charges should be dismissed. At least two defense attorneys – Gerber and Wagner – only face one disciplinary charge. Wagner’s attorney, Robert Fitzsimmons, urged the HPS to consider the records of the defense attorneys when deciding on recommendations.

“As an attorney, the most important thing you have is a reputation,” Fitzsimmons said. “When you put that black mark on the record, it never goes away.”