West Virginia Supreme Court sides with judge over attempt to obtain testimony on Slow Down

An attempt by Pleasants County Prosecutor Brian Carr and other attorneys to require U.S. District Judge Tim Sweeney to testify about his conversations with a state attorney and investigators about Carr’s involvement in the former Slow Down for the Holidays program was rejected by the state Supreme Court Appeals on Friday. (Photo file)

CHARLESTON — An attempt by lawyers under investigation in the now-defunct St. Marys Slow Down for the Holidays to obtain records and testimony from a district court judge was blocked by the West Virginia Supreme Court of Appeals. On Friday, the state’s highest court issued a restraining order requested by Third Judicial District Judge Tim Sweeney seeking to block an order issued by a hearing panel subcommittee (HPS) of the state Lawyer Disciplinary Commission on behalf of several attorneys and Pleasants County Prosecutor Brian Carr that would require him to appear Sweeney to testify and provide certain documents in connection with pending cases against these lawyers brought by the Office of Disciplinary Counsel (ODC). Carr, former Pleasant County Assistant Prosecutor Paul Marteney, and trial attorneys Harley Wagner, Justin Raber, Jay Gerber Jr., Andre Richardson and Jordan West have cases pending before HPS related to their roles in the Slow Down for the St. Police Department program. Marys. Holiday program. Carr and Marteney are under state and federal investigation for their roles in the scheme that began in 2008, when Carr was municipal judge for the city of St. Marys. The Slow Down program would eliminate minor driving offenses in the months leading up 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 Pleasants County Sheriff’s Department became involved in the program in 2018, after Carr took office as prosecutor, when he and Marteney began dismissing certain misdemeanor charges, such as driving under the influence, in exchange for a donation of gift cards, and sometimes cash for the Slow Down program. The cases against seven lawyers were consolidated into one to simplify disclosure requests. In a separate case, attorney Wells Dillon was disciplined by HPS and ordered to pay the costs of the proceedings and complete additional continuing education courses in ethics. According to Judge C. Haley Bunn, who wrote the order granting the injunction, Sweeney informed the ODC and the Judicial Disciplinary Counsel (JDC) of the county’s involvement in the Slow Down program following concerns raised by attorney Judith McCullough. According to McCullough, in late 2020, Carr offered to dismiss the charges against McCullough’s client – who was charged with driving under the influence and possession of a controlled substance – in exchange for $1,500 in cash or gift cards to the Slow Down program. Even though McCullough advised her client not to accept the offer, the client accepted the offer, made the payment, and the charges were dismissed. McCullough expressed concerns about the Slow Down program to other lawyers who expressed ethical concerns about the program.
“Other attorneys questioned the ethical soundness of the program and at least one suggested that attorney McCollough speak to the judge,” he added. Bunn wrote. “Attorney McCullough then contacted Judge Sweeney, the only district judge in Pleasants County, to express her concerns about the program and disclose her actions in (her client’s) case. Attorney McCullough had known Judge Sweeney for several years.
Bunn said Sweeney has not filed a formal complaint with the ODC or JDC, as both agencies are conducting their own investigations. In 2021, Pleasants County Judges Randy Nutter and Lisa Taylor resigned and agreed to never run for public office again after being admonished by the Judicial Investigative Committee (JIC) for their roles in accepting case dismissals in exchange for donations to Slow Down program. Both Carr and Marteney were indicted in 2021 by the Investigative Panel of the Lawyers Disciplinary Board for multiple violations of the Rules of Professional Conduct. Carr himself was charged with 178 violations in 21 separate counts. State investigators found that Carr and Marteney’s selection of only a handful of misdemeanor cases in exchange for cash donations constituted “bribe.” The cases against Carr and Marteney have been placed on hold in 2022 amid a federal investigation by the United States Attorney’s Office for the Northern District of West Virginia. Marteney’s law license remains suspended in connection with a separate ODC case. ODC began filing charges against defense attorneys who accepted Carr and Marteney’s Slow Down agreements in late 2022. The attorneys are accused of violating the Rules of Professional Conduct that regulate the conduct of lawyers in the state. The ODC investigates lawyers, while the JIC investigates judges, judges and justices of the peace. In March 2023, Carr’s request to HPS to remove Sweeney as a complainant was granted. ODC asked HPS to reconsider the application given that Sweeney had not filed a formal complaint. HPS issued a second order naming Sweeney and McCullough as complainants. Sweeney, ODC and JDC filed their own motions to quash Carr’s subpoena. HPS denied all three motions and filed a memorandum stating that the judges’ deliberation privilege did not apply in this case because Sweeney was not acting in his capacity as a judge when he contacted the ODC and JDC. Judge Bunn disagreed.
“HPS clearly erred in ordering Judge Sweeney to submit to testimony and produce documents as part of the underlying disciplinary proceedings… we find that the testimony and records covered by the subpoena are protected by judicial privilege,” he added. Bunn said.
“According to attorney McCullough’s testimony in depositions and sworn testimony before the ODC, it appears that she spoke to Judge Sweeney because of his position as a judge.” Bunn continued. “Consequently, requiring Judge Sweeney to testify regarding his decision to report the attorney’s conduct pursuant to his judicial duties…would violate the officer’s “prerogative to make decisions in good faith.”
Steven Allen Adams can be reached at [email protected].

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