Lawyer knew 1992 murder information was false, disciplinary board finds
CHARLESTON, W.Va. -- A lawyer who represented a West Virginia man when he appealed his double murder conviction elicited false information from a Texas death row inmate and concealed evidence that the two convicted killers knew each other, a disciplinary panel has found.
Last month, the state Office of Disciplinary Counsel released a 45-page finding that calls for the West Virginia Supreme Court to suspend the law license of Wendelyn Elswick, a state assistant attorney general, for at least three years.
Elswick worked in the Kanawha County public defender's office in the early and mid-2000s. She represented Dana December Smith during his appeal. Smith was convicted in 1992 of stabbing two women to death in Leewood.
The ODC found during a years-long investigation into complaints lodged by Elswick's former supervisor, Kanawha County Chief Public Defender George Castelle, that Elswick buried notes and letters that indicated Smith and Texas serial killer Tommy Lynn Sells had met before, despite repeatedly assuring others that the two had no link to each other.
Sells, a drifter who spent time in West Virginia in the early 1990s, told authorities in 2001 that he committed the murders. Elswick elicited information from Sells after that, knowing it was false, according to the disciplinary panel.
The letters, which were the focus of a separate complaint that Smith filed against Elswick, also revealed that she had a suggestive pen pal relationship with Sells that ultimately damaged her client's appeals chances, the ODC found.
In her correspondence with Sells, Elswick shared details about her life, including her strained relationship with her father and how she felt 'stupid' and 'poor' in law school. In return, Sells sent Elswick disturbing "rape fantasies."
Elswick has said that she kept in touch with Sells on the advice of Texas authorities, who apparently advised her that she would need to regularly correspond with Sells to keep his attention.
She also repeatedly denied having knowledge that Smith and Sells knew one another, and told the panel that she did not remember Sells giving her information that would have suggested otherwise.
"I never meant to hurt anybody in any of this case. And I was just -- I was stupid," Elswick said during one hearing, according to the panel's findings. "I was stupid about the letters. But I really -- really tried to do the right thing and do the best that I could. And I'm sorry."
Elswick's lawyer, Mark Kelley, filed a one-paragraph response to the complaint that objects to the findings. Kelley did not respond to requests for comment. Elswick could not be reached; her husband, Lincoln County Family Court Judge Scott E. Elswick, said the family had no comment.
Smith and Sells both remain in prison.
In 1992, a Kanawha County jury convicted Smith of killing Pamela Castoneda, 36, and her mother, Margaret McClain, 63. Both women were found in a home in Leewood. McClain was stabbed 17 times; her daughter, 14 times. Smith has always proclaimed his innocence.
One of the women had been raped, but prosecutors did not pursue rape charges. The murder weapon was also never identified, though prosecutors believed that it might have been a hunting knife that Smith had borrowed from a friend and cleaned sometime after the killings.
Although Sells' name was never mentioned during Smith's trial, Sells was in Charleston in the early 1990s, about the time McClain and Castoneda were murdered, according to previous reports.
He was panhandling with a "will work for food" sign on a Washington Street bridge when a woman offered to take him back to her apartment and feed him. About an hour later, a neighbor found the woman naked, covered in blood, screaming, and clutching a cordless phone outside a Grove Street apartment.
The woman said that Sells had ambushed her in her apartment and raped her at knifepoint before slashing her throat and tying her hands and feet.
Sells eventually pleaded guilty to malicious wounding charges after then-Kanawha County Prosecuting Attorney Bill Forbes agreed to drop the rape count in light of medical records that contradicted the woman's testimony, and other police accounts that showed she had a history of falsely accusing people of sexually assaulting her.
On New Year's Day in 2000, Sells crawled through a window at a home in Del Rio, Texas, and killed Katy Harris, 13. She was stabbed 16 times. Sells also slit the throat of a 10-year-old girl, who escaped. Sells was convicted and sentenced to death.
After his arrest, Sells claimed that he had killed more than a dozen people, including the two W.Va. murders.
Elswick, whose name was then Wendelyn Campbell, was assigned to Smith's appeal in 2004, after Sells told a reporter for the TV show "48 Hours" that he had committed the West Virginia murders.
Elswick began contacting Sells, asking for permission to interview him. At first, according to the ODC report, Sells wrote back to Elswick, and said, "about this individual that you represent in this matter, please tell him he is a [lying] ass ... may just let him rot."
In May 2004, Elswick and legal assistant Jane Brumfield met with Sells on death row in Livingston, Texas. During the interview, Elswick scribbled some notes that indicated that Smith "bought drugs off Tommy" and that the two "became acquainted."
The same month, Sells sent Elswick another letter that called Smith a "lying ass piece of [expletive]." He also indicated in the letter, according to ODC, that Smith reneged on some sort of deal that the men had.
"And I do think I could of help [sic] more had he keep [sic] his word," Sells said, according to the letter.
Elswick returned to death row months later, this time taking a tape-recorded deposition in which Sells again confessed to the McClain-Castoneda murders. According to the interview transcript, Elswick asked Sells if he had met Smith. Sells said no, apparently contradicting his earlier statements to Elswick.
By the spring of 2005, Elswick asked to be removed from the case because of "perceived issues" with Smith. Castelle, her boss, took over the case.
Afterward, Brumfield apparently sent several email "shout outs" to a Texas radio station, asking them to play songs for "Tommy Lynn."
"Please play Motley Crue's 'Shout at the Devil' and give a shout out to Tommy Lynn from his two mountain mamas in West Virginia," read one of the emails excerpted in the ODC investigation. "Please also let him know we are always thinking about him."
In February 2006, Sells signed a letter that recanted his admission and alleged that he received letters from Indiana that gave him details of the McClain-Castoneda murders. He also said he was forwarded a letter from his own lawyer, which also contained details of the crime. The author of that letter was "Windy Campbell," Sells alleged.
"It was kind of a chess game talking with her," Sells said in his recantation. "I thought everyone had been messing with me so I messed with them back."
Two years later, Castelle found an unmarked file in Brumfield's office that contained 61 letters between Elswick and Sells. Castelle read each letter to verify that she had not provided any information about the murders to Sells, and then later fired Brumfield for the concealed file and false testimony at a previous appeal hearing.
At some point after Elswick and Sells first met in Texas, Sells asked his lawyer if he could send poems to her. Elswick told Sells in a letter dated June 28, 2004, that "I want you to know that I am not being nice to you for the depositions."
In letters from Sells, he makes reference to Elswick's breasts and tells her that he thinks she is "sexy," according to the ODC findings.
Elswick told Sells in one letter that she only dated older men in high school and that some people would say that she is looking for an "eternal father figure," the ODC complaint states.
The letters end in March 2005, with the last one from Sells asking Elswick if he is in the "dog house," according to the findings.
The ODC found that Elswick "jeopardized her client's case and the witness's credibility, as well as her own credibility.
"This ongoing pattern of behavior and respondent's refusal to recognize the clear conflict of interest that she created calls into question respondent's overall fitness to practice law," the report states.
Smith has claimed that he never met Sells.
During Elswick's initial hearing before the disciplinary board in 2011, her attorney said Elswick did not intentionally hide evidence that suggested Smith and Sells had a connection.
If Elswick had intended to conceal the link, she could have simply destroyed the letters, Kelley pointed out. But she didn't, indicating that she was unaware that the information existed, he said.
Kelley also said that Elswick was a young lawyer at the time, and continued to keep in touch with Sells because Texas authorities told her it would be a good idea.
"What we had here was perhaps a mistake -- certainly not an intentional mistake -- made by then a very young lawyer," Kelley said in 2011.
The disciplinary board gave Elswick credit for not destroying the letters, but repeatedly scoffed at assertions that she was ignorant of the relationship between Smith and Sells.
"Respondent's testimony very much bothered this panel when the respondent denied, on direct questioning, that she was aware of the fact that Mr. Sells and Mr. Smith knew each other even though it was clearly set forth in her own handwriting and initial notes," according to the ODC findings.
Reach Zac Taylor at email@example.com or 304-348-5189.