Wetzel County Prosecuting Attorney Timothy Haught reported on Friday that the case involving The State of West Virginia vs. Kenneth Evan Powell, Jr. has been dismissed by Judge Mark A. Karl, based on a motion entered by Haught.
This comes after news was released to the public at the Dec. 11 Wetzel County Commission meeting regarding missing evidence in the case.
Over the summer, a suppression hearing was held in this case, a drug sale. Evidence, including drugs and money, were seized during a search conducted as part of the investigation.
This evidence was brought to the suppression hearing by the evidence custodian, who, at the time, was then Chief Deputy Rob Haught. The hearing was cancelled and the evidence was reportedly taken back to the evidence room by the custodian.
At the Dec. 11 commission meeting, Timothy Haught reported that he later found out the $485 cash that was part of this specific case's evidence was missing from the evidence room. He reported that this should have been disclosed to him, but he did not find out until after Sheriff James Hoskins left office.
Sheriff Mike Koontz and Deputy Rob Hayes reportedly scoured the evidence room for the missing money, but it could not be found. The prosecuting attorney reported that he had to notify the opposing counsel in the case that the money was missing.
"It's something you cannot explain away; it's fatal to the case," the prosecutor said Friday, during a conversation by phone. "The judge has dismissed (the case), after I filed a motion."
Prosecutor Haught also reported that he has moved for dismissal of the the forfeiture action connected to the Powell case. "Whenever we have a drug case, where we seize money or property, we usually file a civil case, called a forfeiture," he explained. "This allows us to seize any money or property that is connected with the drug transaction."
Ten percent of the proceeds generally go to prosecutor's investigative fund and the rest go to the arresting agency. "It's very common with federal cases," said Haught.
Since it will be dismissed, the 2000 Suzuki Vitera that was seized will be returned. At Tuesday's Wetzel County Commission meeting, Haught told commissioners that the vehicle has been held for almost two years while this case has proceeded.
"For some reason the arresting officer had it towed and impounded at Jackson's Garage," said Haught. Normally it would have been impounded at the courthouse or at 911 center.
"I was not aware that it was at Jackson's" said Haught. "The problem is now that with the dismissal of this case, the sheriff's office will likely get stuck with the bill," said Haught.
At $15 per day, the bill was about $11,000, for a vehicle worth approximately $4,000. However, Koontz has negotiated with owner Butch Jackson who agreed to reduce it to only 10 percent, or about $1,100.
"I have talked to Jackson and he has agreed to help us out and do his civic duty," said Koontz.
"There is no reason that seized vehicle need to be impounded at a towing company," said Haught.
"That was the reason we built that (911 center) up there, because it was our understanding that it needed to be under 24-hour surveillance," said Mason.
Prosecutor Haught expressed his unhappiness with the dismissal of the Powell case. "This is not how things are supposed to go," he stated. "This is a black mark on the credibility of law enforcement. We've never had a case that had to be dismissed for missing evidence," said Haught of what has happened under his tenure. Commissioner Scott Lemley pointed out that this incident was not Haught's fault.
"I think it's important to know that this evidence came up missing in August, before Sheriff Koontz became sheriff," Prosecutor Haught stated. "The evidence came up missing before, and (Koontz) has made an effort to look and try to find it. What I've done, is asked the West Virginia State Police to assist the sheriff's office in the investigation."
Prosecutor Haught also noted that there is no specific suspect right now in the case. "It could've been lost, it could've been stolen," he said. "We have no specific suspect relative to it." He also noted that former Chief Deputy Rob Haught is cooperating with any questions investigators might have. "(Rob) Haught has cooperated fully with Mike Koontz."
The Wetzel County Prosecutor did note that there have been some changes in the sheriff's office besides just a change in sheriff and chief deputy. "Since Koontz has taken office, we've taken steps to make certain that access to the evidence room is limited and to make sure that all the evidence is secure."
Haught has requested WVSP to come in independently and look at what has been done with the investigation. He said this will be to review any potential criminal aspects of what has been done, simply to give an independent opinion. "To take away the allegation that this was somehow politically motivated," said Prosecutor Haught. He quoted John Adams when he defended the people who were responsible for the Boston Massacre, "Politics be damned, I am a minister of justice."
"There is nothing I resent more than someone making an accusation that I am acting in his role as an officer of the court for political reasons," said the prosecutor. "Right is right and wrong is wrong. That's the way I was brought up and that's the way I approach my job.
"The point here is we're going to restore the integrity of that sheriff's office. Mike has taken steps to do that. The new sheriff will take steps to do that. We're going to make sure that we don't ever have an evidence issue again."
When the investigation is finished, if there is any criminal conduct, Prosecutor Haught said that criminal conduct will be prosecuted like any other criminal conduct.
"Some people asking why there haven't been any charges filed," he noted. "I'm not going to go off half cocked and bring charges until there is a full investigation. I don't go off half-cocked on any case. I have a standard that I have to meet in court."