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Plants’ trial request denied: Magistrate won’t let Kanawha prosecutor out of intervention deal

Gazette file photo
Kanawha County Prosecuting Attorney Mark Plants (center) arrives at the Kanawha County Judicial Annex with his lawyer, Jim Cagle (left), for a court appearance earlier this summer. On Friday, the Mercer County magistrate overseeing Plants’ case refused to let him withdraw from a deal with a special prosecutor over the charges.

PRINCETON, W.Va. — Kanawha County Prosecuting Attorney Mark Plants held back tears Friday and asked a magistrate to let him back out of a deal and go to trial on two misdemeanor criminal charges, but the magistrate refused the request and told Plants he’d better comply with the agreement he made — or else.

“Putting a prosecutor in jail would be devastating,” Magistrate Mike Flanigan said Friday. “There’s a building filled with people that Mr. Plants has probably put there. That won’t stop me.”

Plants faces a domestic battery charge after striking his 11-year-old son with a belt, and he allegedly violated a domestic violence protection order telling him to stay away from his children and ex-wife.

At Friday’s hearing in Princeton, Flanigan, a Mercer County magistrate appointed to oversee the case, asked why Plants had changed his mind about following through with the deal with special prosecutor Sid Bell. Under that deal, Plants would attend a batterer’s intervention program in Putnam County and possibly see the charges against him dismissed as a result.

“When it comes right down to it, a deal’s a deal,” Flanigan said. “You have agreed to the program twice.”

The original deal struck by Plants and Bell involved a pre-trial diversion agreement that said, if Plants stayed out of trouble for a year, the charges would be dropped. Those deals are illegal in domestic violence cases.

Plants and Bell then signed an amended version of the deal — although Plants’ attorney, Jim Cagle, did not, saying it didn’t guarantee that Plants would gain anything from his participation.

Bell told the magistrate Friday that Plants should be held to the agreement, to save his two sons from testifying during trials. Flanigan previously said the charges would require two trials.

“I think it’s important, as a precedent, to go forward with what we all agreed to do and at least give him the opportunity to complete the program,” Bell said, “and I think he’ll complete it.”

Also, Bell said, a family court judge’s decision allowing Plants to have unsupervised visitation with his sons could be affected if he’s allowed to withdraw from the deal.

Plants has been able to see his children unsupervised for weeks, despite not being in the program, Cagle told the magistrate.

“He has not been in the program?” Flanigan said, sounding surprised. “There is a significant communication gap here. I was not informed by any party sitting here at this table that he was not being accepted into the program. That hasn’t come into this room . . . . That should have been communicated.”

Plants said he tried three times to attend the program, but was told he had to have a court order. Flanigan said he had been waiting to discuss Cagle’s objection to the agreement at an Aug. 27 hearing, which was set to judge Plants’ compliance with the program. Flanigan signed the order Friday and said Plants should be enrolled before the Aug. 27 hearing date.

“I’ve done my best to do everything this court has asked me to do,” Plants said. “I tried to enter this agreement back in May, now we’re four months later, and I can’t. I just want to, I want to resolve this issue and what’s in my family’s best interest.

“My family’s best interest is to have this resolved sooner rather than later, and there’s only two choices, really — not eight months from now; it’s now — and that’s either demand a trial or resign and have the prosecutor dismiss the charges. This is not good for my family to live through this another eight months.”

Cagle continued to argue Friday, after Flanigan had refused to set trial dates, that Plants has the right to a trial, even if it’s while he attends the program.

“Ultimately, his right to have a trial will trump the agreement that was signed,” Cagle said, pointing out that Plants could simply miss a few days of the program, and then trial dates automatically would be set.

Being acquitted of the charges would help Plants fight a removal petition the Kanawha County Commission filed Friday morning in Kanawha Circuit Court, Cagle said.

Bell pointed out, though, that the petition isn’t based on the criminal charges Plants faces but on the disqualification of Plants’ office from prosecuting certain domestic violence-related charges. In addition to paying Bell, county commissioners are paying a special prosecutor $200 an hour to handle those cases, and they don’t see an end in site because it’s not clear if the conflict would be resolved if Plants is acquitted or the charges are dropped.

The petition will be forwarded to the West Virginia Supreme Court, which would appoint a special three-judge panel to hear arguments. Cagle will represent Plants in that matter, as well.

Melissa Foster Bird, attorney for the County Commission, argues that Plants is not performing the duties his elected position requires of him and that violates state law. She also accuses Plants of making disparaging remarks about special prosecutor Don Morris’ salary and the motive behind commissioners filing the petition.

After Plants was charged, he argued to the West Virginia Office of Disciplinary Counsel, which oversees lawyers in the state, that what he did isn’t a crime and he was simply exercising his right as a parent. The ODC tried to suspend Plants’ law license and/or take his office off of cases involving domestic violence, claiming that his defense created a conflict of interest in representing the government in similar cases.

The city of Charleston filed its own petition, asking that Plants’ office be removed from prosecuting certain cases because of a conflict, and Kanawha Circuit Judge Duke Bloom barred Plants’ office from handling several domestic violence cases and appointed four prosecutors to do that work.

The Supreme Court ruled that Bloom’s order was sufficient, for the time being, and Plants’ license wasn’t suspended. The ODC continues to investigate and could file more ethics charges against Plants.

Reach Kate White at, 304-348-1723 or follow @KateLWhite on Twitter.

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