Kanawha prosecutor: Suspension call ‘unjustified, excessive and illogical’

CHIP ELLIS | Saturday Gazette-Mail
Kanawha County prosecutor Mark Plants said Friday that a request by the West Virginia Office of Disciplinary Counsel to have him removed from some domestic-violence cases, while he faces misdemeanor charges for striking his son with a belt, is “unjustified, excessive and illogical.”

Kanawha County Prosecuting Attorney Mark Plants says the call from the office that oversees West Virginia lawyers for his immediate suspension is “unjustified, excessive and illogical.”

Plants, who faces two misdemeanor charges, responded Friday to a petition filed against him last week by the state Office of Disciplinary Counsel, which asked the West Virginia Supreme Court to suspend him or remove his office from handling domestic-violence cases involving parents and minor children. He said the ODC’s filing overreaches and is premature.

Plants “wishes to continue, as he has successfully done in the past, to perform the duties of his office as the citizens of Kanawha County have elected him to perform them,” the response filed in the Supreme Court clerk’s office states.

Plants is charged with domestic battery of his 11-year-old son and has admitted he struck the boy several times with a belt. He also faces a charge of violating a domestic-violence protection order that told him to stay away from his ex-wife and sons.

The prosecutor has said he’s not guilty of any crime. His attorney handling the criminal charges, Jim Cagle, wrote in a court filing that Plants has the right to discipline his child and asked that the domestic-battery charge be dismissed.

That belief gives Plants a conflict of interest, according to the ODC’s filing.

Plants “cannot represent his client, the State of West Virginia, in cases brought against parents or guardians … because such representation may be materially limited by his own defense that such alleged criminal conduct is not a violation of the law,” the ODC filing states.

Plants’ response to the ODC, filed by Pennsylvania attorney Robert Davis, says his office wouldn’t handle domestic-violence cases involving corporal punishment until his charges are resolved.

Dan Holstein, Plants’ chief of staff, said Thursday that Kanawha assistant prosecutors haven’t been handling any domestic cases involving parents and minor children, in light of the ODC’s filing.

The city of Charleston filed a petition this week asking a judge to keep Plants’ office from handling those types of cases brought by Charleston police.

Plants also responded to that petition Friday, saying the city’s request is unnecessary. Holstein wrote that the city’s allegation “that all cases pertaining to parents and children will be affected ... is an overly broad generalization.” Plants has “already put in place a process to remove himself and seek a special prosecutor in cases wherein a conflict has been alleged by ODC,” Holstein wrote.

The response to the ODC also explains what prosecutors in Plants’ office have done to prevent a conflict. A personal conflict has been “easily avoided by [Plants’] voluntary direction to his staff that he and they have advised and will continue to advise the Circuit Court in any domestic violence case of the existence of this proceeding,” according to Friday’s response to the ODC.

Plants argues that the small amount of bail and his release on recognizance shows “the relative lack of seriousness of the charges.”

Also, “if the staff of the ODC do not agree with the clearly-supported allegations of law or the method of discipline used by [Plants], their proper resort is to their legislators, not this honorable court,” the response states.

Plants’ response states that he spanked his son after his son admitted to punching and embarrassing his step-brother in front of neighbors. The boy’s stepbrother, Plants says, is younger and 50 pounds and a foot smaller than Plants’ biological son.

After the spanking, Plants “son’s face was red but he was not crying. After the apology [Plants], asked the step-son if the punishment given was fair,” the response states.

Plants’ ex-wife later took the boys for the evening and then returned them to Plants. His son never complained about the spanking, Plants said, and the incident wasn’t talked about until four days later.

Plants said the incident lasted no more than 20 seconds (including his son’s apology to his stepbrother, he said) and that he wouldn’t allow his son to “be a bully and asked how he would feel if, in school, another larger child punched him in the back as he had done.”

“After about five minutes, [Plants] returned to his son’s room, told him he loved him but ‘as your Dad, I can’t let you hit people’,” the response states.

Plants says that’s the same way his father disciplined him and says his ex-wife, Allison Plants, also spanks their children with a belt.

Plants has demanded jury trials on both charges.

In the complaint, police say Plants went to his 11-year-old son’s room after the boy shoved his step-brother off a scooter. The boy told police that Plants “held him by his arm” and struck him more than 10 times with a leather belt. Plants then took the boy upstairs and “stood him in front of his step-brother.”“Do you think I whipped him enough?” the complaint says Plants asked the boy’s stepbrother. Police say a bruise on the boy’s thigh was shaped like a “U.” The bruise was about six to seven inches in length, four days after the incident, according to police.

West Virginia State Police Sgt. M.S. Adams, of the Crimes Against Children Unit in Wheeling, conducted the investigation into the allegations against Plants.

Plants says in his response that Adams has said to one of his attorneys that the bruise wasn’t intentional and that he believes Plants’ didn’t intend to harm his child.

According to the state rules governing lawyer disciplinary procedures, justices have to determine if there is good cause for a filing by the ODC. The next slated conference justices have is on April 24. That meeting is private. If good cause is determined, Plants would be given at least 30 days before a hearing date is set. Justices can’t suspend him until after a hearing, according to the rules.

Reach Kate White at kate.white@wvgazette.com or 304-348-1723.

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