Jack LattaStaff Writer
October 31, 2012
WILLIAMSON - “The jurors that serve on Mingo County court cases sacrifice their time to perform the task assigned to them and the majority of them take their responsibilities very serious,” said Mingo County Circuit Court Judge Michael Thornsbury. “It angers me to know that all it takes is one that does not take his oath or responsibilities serious to taint a trial.”
“In the case of the State of West Virginia vs. Joshua Bly Miller, the jury’s verdict has been set aside, the conviction does not stand. We are forced to try this case again.”
During the Sept. 13, trial of Miller, who had been charged with reckless DUI causing death and two counts of reckless DUI causing injury, it was brought to the judge’s attention while recessing for lunch that a juror, Gary Baisden, was an employee of the Mingo County Tax Department and had failed to disclose his employment status during jury selection, or information concerning his relationship with members of the MCSD.
Baisden’s direct supervisor is Sheriff Lonnie Hannah, who also serves as the county treasurer. After receiving the information regarding Baisden, the judge immediately dismissed him, and had him removed from the courtroom.
The trial continued as scheduled, but only after Judge Thornsbury assured the prosecution and defense attorney that if any discrepancies were brought to light during the trial because of the situation, he would declare a mistrial.
The jury reached a decision of guilty of reckless DUI causing death (felony) and one count of DUI causing death (misdemeanor). Miller was remanded to the custody of the Southwestern Regional Jail at Holden where he had been employed as a corrections officer at the time of the accident.
On Oct. 15, a post-conviction hearing was held for Miller where several hours of testimony and arguments ensued. Mingo County prosecuting Attorney C. Michael Sparks said that oral arguments were provided by both he and Abraham. Impact statements were presented by members of the victim’s family. Abraham filed several motions that would need to be reviewed and ruled on prior to sentencing, which was then rescheduled for Oct. 29, but was later bumped back to Oct. 31.
During the sentencing hearing Wednesday, Judge Thornsbury began by saying that each and every person was entitled to a fair trial. After carefully reviewing the Miller trial and all the circumstances that occurred during those two days in the courtroom, the judge said he felt like a fair trial may not have been the case, referring to the problem with the juror, the poor job conducted with evidence collection and a possible procedural error that had occurred.
“One very specific question that we ask each potential juror is if they know or have a personal or business relationship with any of the attorneys involved, the judge, defendant, victim or law enforcement agency that investigated the crime,” said Thornsbury. “Mr. Baisden remained silent and did not disclose his employment, nor did the Sheriff of this county, who sat in the back of this courtroom and failed to disclose that he had direct knowledge that he had an employee on the jury.
“He’s an officer of this court and by law, he had a sworn duty to disclose the fact that Mr. Baisden worked in the tax department.
“He did not.”
Judge Thornsbury said that he was approached during the lunch recess of the trial and Baisden’s employment status was disclosed to him.
“Within just a few moments after being told this news, we had got to the bottom of the matter and he was removed as juror and was replaced by an alternate. However; the damage was done and the credibility of this jury was in question.
“I thought I had seen it all during my time on the bench, but I was very mistaken. I had not seen everything.
“I did not want to put the victim’s family through the terrible ordeal of another trial, to have them sit and listen once again to the circumstances that surrounded the death of their son Adam, but this cannot be avoided,” said the judge. “I also understand that a second trial is tiring both physically and mentally on the defendant and his family, and an additional cost to the taxpayers. Even with taking all those factors into consideration, the bottom line is that Mr. Miller deserves a chance to have a fair and just trial without any issues such as the one that previously occurred.”
Following that statement from the judge, the parents of the defendant were elated, knowing that this meant a second chance for their son. Tears streamed down the face of his mother, Myra Miller.
After the judge ruled to set the verdict aside and hold a second trial, Abraham, the attorney for Miller, requested that bond be set for his client pending the second trial. The attorney said that due to the fact that Miller was formerly employed as a corrections officer, it was necessary for him to be kept away from the general jail population for 23 hours out of each day, and was allowed very little social interaction. Considering that fact and that of his client being on home confinement before the trial with no problems whatsoever, he felt that a reasonable bond should be issued.
The prosecutor told the Daily News that the amount of bond, if granted, would be thoroughly reviewed before being settled on, especially since the conviction handed down against Miller at the conclusion of the first trial proved that it is very likely that the defendant could be convicted in the second trial that was scheduled for Dec. 4.
“One of the factors you use in determining the amount to set the bail is whether or not there is a high probability the defendant will be convicted, and due to the first verdict rendered, we see that there is a good chance of the decision being the same as before. When those circumstances apply, you have to consider the defendant to be a greater flight risk than before,” said Sparks. “I’m sure that a decision will be made regarding bail in the near future.”
When asked about his feelings regarding the verdict being set aside and a second trial against Miller scheduled, Sparks told the Daily News that he looked forward to retrying the case and said he would, once again, seek justice for the York family.
“They deserve closure in this case. They are devastated right now. This has taken a huge emotional toll on their entire family,” said Sparks.
The case stems from a one-vehicle accident which occurred the night of October 13, 2011, on U.S. 119 that claimed one life.
Four friends had allegedly spent a few hours at a strip-club in Logan and were traveling back toward Williamson when the driver lost control on the Toyota SUV, crossed the median and both of the north-bound lanes before flipping and coming to rest on their top.
Joshua Miller, the owner of the vehicle was arrested for DUI at the scene by members of the Mingo County Sheriff’s Department (MCSD).
One passenger, Adam York, was pronounced dead at the scene while another, Zachary Smith, was air-lifted to a trauma center in Huntington, where he spent several weeks after undergoing multiple surgeries for injuries he sustained.
A fourth occupant in the vehicle, Paul David Howard, Jr., who had only minor injuries, reportedly fled the scene and was not questioned until several days after the accident occurred. Brian Abraham, the defense attorney that represented Miller, argued during the trial that Howard was in fact the driver instead of his client.
The pre-trial hearing in this matter is scheduled for Tuesday, Nov 27 at 9 a.m., and the trial will be held on Tuesday, Dec. 4 at 9 a.m.