About a week ago, at a hearing in Kanawha County Magistrate Court, the attorney for a man charged with felony child abuse presented a defense that prosecutors have heard all too often lately.
The prosecutors call it “the Mark Plants defense.”
“My assistants are getting it thrown up in their face almost every day,” said Don Morris, the special prosecutor tasked with overseeing child abuse cases in Kanawha County, now that Plants — the county’s elected prosecutor — faces two charges related to striking his 11-year-old son with a belt.
Morris recalled what the lawyer for St. Albans resident Eric Goshorn told a magistrate: “My client had the right to discipline this child, the prosecuting attorney of this county disciplines his child, Mark Plants got a PR bond.” A personal recognizance bond lets a defendant leave custody without posting any money or property as collateral for bail.
Morris added, though, that he can’t blame defense attorneys for making that argument.
Plants faces two misdemeanor charges: domestic battery of his 11-year-old son and violating a domestic violence protective order. Police say he struck his son with a leather belt, leaving a 6- to 7-inch bruise on the boy’s thigh.
After Plants argued to the West Virginia State Bar what he did isn’t a crime and that he has a right to discipline his son, Kanawha Circuit Judge Duke Bloom barred Plants’ office from handling certain cases involving domestic abuse allegations and appointed Morris, a longtime assistant Kanawha prosecutor who retired last year, to oversee several assistants in handling those cases.
The Gazette-Mail obtained an audio recording of Goshorn’s hearing, which includes an exchange about Plants between Morris and Goshorn’s attorney, public defender Rick Holicker. While Holicker questions the mother of the victim, he asks the woman whether she instructed Goshorn to discipline her child.
Morris objects, saying Holicker is trying to persuade the woman to use the word “discipline.”
“It’s the key issue in this case, your honor,” Holicker tells the magistrate. “Because, if, as Mark Plants claims, a parent has the right to discipline a child, a parent also has the right to delegate that discipline … he is the prosecuting attorney in this county, certainly that’s got to carry some weight.”
“Let’s not talk about Mark Plants,” Magistrate Michael Sisson says, and tells Holicker he’s out of line.
Morris states that Plants is not the prosecutor in the case and quietly states that he’s going to “send this to the State Bar.”
“I’m sorry?” Holicker quickly responds. “What were you muttering?”
“I said I’m going to send a copy of this to the State Bar — not against you,” Morris says. “This is the kind of issue we’re having to deal with … I’m talking about the whole situation, it needs to go to the Bar, they need to understand the situation.”
After Plants was charged, the State Bar’s Office of Disciplinary Counsel, which oversees attorneys in the state, asked the state Supreme Court to immediately suspend his law license and/or remove his office from handling cases of domestic violence involving parents and minor children until it completed an investigation. The city of Charleston followed up with its own petition asking Bloom to bar Plants’ office from certain cases.
Bloom ruled first and appointed Morris, and Supreme Court justices decided that was enough for the time being.
In a deal made last month with Sid Bell, a former longtime McDowell prosecutor, Plants agreed to attend a 32-week batterers intervention program in Putnam County. If he completes the program, Bell will consider dropping the charges. Plants must also appear for compliance hearings before a magistrate over the case.
It’s not clear whether the conflict over Plants handling child abuse cases would be resolved if the charges against him are dropped.
Morris said he’ll stay as long as he’s needed. He and four assistants, transferred from Plants’ office, are handling all of the county’s cases involving child abuse and neglect, violent crimes against children by parents or guardians and criminal violations of protective orders. Morris is being paid $200 an hour by county commissioners.
There are about 60 active felony cases and hundreds of domestic violence protective order violations and abuse and neglect cases that special prosecutors are now handling, according to Morris.
The prosecutors and two legal assistants assigned to help them have set up offices on the first floor of the Kent Carper Justice and Public Safety Complex on Virginia Street. Stacks of files cover their desks and other available tabletops. Plants’ office is on the third floor of that building.
Earlier this week, Morris announced seven indictments a grand jury returned on cases that he’s assigned to. The grand jury process, like everything else between the prosecutors’ offices, is being kept separate.
For the most part, Morris said, things are running smoothly. If a defendant is facing a charge that Plants’ office is allowed to handle and another charge that should be prosecuted by Morris’ office, the case goes to Morris.
“I just had a kidnapping case that I ordinarily wouldn’t have had, because it was an adult, but the defendant was also charged with two counts of violating a protective order,” Morris said.
When a defendant is charged, the legal assistant who reviews their paperwork in order to set a preliminary hearing will bring any questions to Morris, who said he will make a decision or ask Bloom.
At the hearing for Goshorn, his lawyer again mentioned Plants while asking that his client’s bail be reduced.
“And I’m gonna throw Mark Plants into this,” Holicker said. “Mark Plants is out of jail, Mark Plants never went to jail. Mark Plants got a PR bond from the beginning, leaving a six-inch bruise on a child, apparently with a belt buckle. This [Goshorn’s case] involved a hand. There was testimony for six swats also involved a paddle, which is not uncommon in the state of West Virginia.”
At the hearing, Morris called Goshorn’s case one of the worst cases he’s seen.
Goshorn remained in South Central Regional Jail last week on $25,000 bail. Morris said last week that the important thing is that the magistrate didn’t buy the Plants comparison and lower Goshorn’s bail.
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