Busch sanctioned by Supreme Court

CHARLESTON – The West Virginia Supreme Court of Appeals heavily sanctioned a former Randolph County prosecuting attorney late Wednesday.

The High Court suspended the law license of Richard T. Busch for three years for misconduct committed during his tenure in office. The offenses occurred between January 2009 up until Busch’s resignation on Dec. 5, 2011, the Supreme Court decision noted.

In addition, prior to reinstatement, Busch must be evaluated by a licensed mental health provider and follow any protocols set forth. He also must undergo an additional 12 hours of continuing legal education, with a focus on ethics. Upon reinstatement, Busch will be placed on two years of probation with supervised practice by an active attorney in good standing with the state bar association.

The sanctions stem from two cases, one involving alleged embezzlement by a fiduciary and another involving alleged sexual abuse charges.

According to the order, Busch ignored multiple requests for documents stored on a computer hard drive in the embezzlement case, which involved Judy Mae Blake and her company, the Community Response Foundation. The non-profit foundation specialized in representative payee services for Social Security recipients.

A hearing was held before Circuit Court Judge Jaymie Godwin Wilfong on April 7, 2010, pertaining to a request from Appalachian Benefits Assistance Inc., the court-appointed conservator for the Community Response Foundation, to receive an archival copy of records on a seized computer. Judge Wilfong entered an order on April 8, 2010, “that such computers be turned over, forthwith, to the State Police Crime Lab and that a complete archival record for each computer be made and forwarded to Appalachian Benefits on an expedited basis.”

During a status conference on July 21, 2010, it was disclosed that Busch failed to comply with the directive in the April 2010 order.

In response, Busch stated, “And, what he (referring to Sgt. Casto of the West Virginia State Police in Morgantown) is doing is he is duplicating the hard drive while keeping it in the chain of custody so we can get that hard drive out and get it to Mr. (Steven) Jory (counsel for Mrs. Blake) and also to the benefit services group, the Appalachian Benefits, has taken over the accounts. So, at this point, I tried to contact Sgt. Casto yesterday and I’m awaiting his response with regards to the status of if he’s copied the hard drive or not. Essentially, that’s where we are, Your Honor.”

On July 22, 2010, a staff member in the Randolph County Prosecuting Attorney’s Office inquired about the location of the computers, and was advised that they were in the evidence locker at the Randolph County Sheriff’s Office.

Busch did communicate with Sgt. Casto via email on July 21 and July 22, 2010.

In an affidavit, Sgt. Casto said the communication of July 21, 2010, with Busch’s staff was the first he had about the evidence.

The hard drives were not turned over to the State Police until Aug. 3, 2010.

According to the Supreme Court order, “Mr. Busch submitted a proposed order to Judge Wilfong for the July 21, 2010, hearing. Despite his awareness that the evidence remained in Randolph County and that his prior statements to the court regarding Sgt. Casto had been false, Mr. Busch took no remedial action to correct his prior misstatements to the court and, instead, memorialized the same in a draft order.”

A second order for the materials on the hard drives was issued on Aug. 24, 2010, ordering that “all documents in the seized hard drives be printed and that copies thereof be duplicated and provided to Appalachian Benefits Assistance, Inc., and to Defendant on or before Aug. 9, 2010.”

On Aug. 24, 2010, the original computer equipment was returned to the Randolph County Sheriff’s Office. Appalachian Benefits Assistance did receive a copy at that time, but copies were not provided to Jory, counsel for Blake.

Jory drafted another letter to Busch on Sept. 9, 2010, requesting copies of the material from the computer. Busch replied in writing to Jory, “(p)erhaps more curious, however, is why you feel that you are entitled to such information. First, Ms. Blake has not yet been indicted. The potential relevance of these hard drives is, and shall remain undetermined until an indictment is returned.”

Blake was indicted on Oct. 25, 2010. At that time, Busch advised Jory that, “he had directed (the) release (of) the original hard drives that were obtained in the above referenced (because) (f)urther investigation has led me to determine that the files contained on the hard drives are neither relevant nor germain to the charge(s) against your client returned by the Randolph County Grand Jury.

According to the Supreme Court order, Busch later admitted that, “despite the contrary representation in the letter, he did not review the contents of the hard drives.”

Blake was arraigned on Nov. 10, 2010, and the trial was set for Jan. 11, 2010. Jory filed a motion to dismiss the case based on Busch’s prosecutorial misconduct, citing Busch’s failure to comply with the court’s order and his lies to the court.

The motion was heard on Dec. 22, 2010, and the court found that Busch, “deliberately refus(ed) to turn over documents as required; made false statements to the circuit court during the July 21, 2010, hearing; attempted to shift the blame to others who were not responsible; failed to correct the false statements made to the court during the July 21, 2010, hearing even after the court gave him an opportunity to correct the same by the issuance of a letter on Oct. 12, 2010; and found that, despite Mr. Busch’s assertions to Mr. Jory in his Nov. 9, 2010, letter that the computer records were not germain, Mr. Busch subsequently acknowledged in the Dec. 22, 2010, hearing that he had never reviewed the records.”

The court found that Busch’s conduct “clearly demonstrated a pervasive pattern of prosecutorial misconduct” and dismissed the case against Blake with prejudice.

In the second case cited in the Supreme Court order, Autumn Rae Faulkner was indicted by the Randolph County Grand Jury during the Feb. 2011 term on three counts of sexual abuse by a parent, guardian, custodian, or person in position of trust, and three counts of sexual abuse in the third degree.

Faulkner’s attorney, Rocco Mazzei, filed a motion to dismiss the indictment, claiming the prosecuting attorney’s office refused to provide him with a video of the minor child victim.

When questioned by the court, Busch advised that he had been in contact with the West Virginia State Police on multiple occasions, and that he believed the trooper in charge of the case had lost the evidence.

In a June 1, 2011, hearing, Wilfong was informed that Busch’s statements, “may not have been accurate, and, out of an abundance of caution, she noticed the same for judicial review.”

The trooper involved with the case testified that the video in question had never been “lost,” and that there was a copy of it in the investigative file. The trooper also testified that Busch never contacted him about the video.

Wilfong found that Busch made a material misrepresentation to the court and held him in contempt.

Subsequently, Wilfong offered to help Busch, but later rescinded that offer, saying that “I felt at that point that Mr. Busch had no interest in being honest, that he had no interest in correcting it, that it was more of a spin.”

Busch resigned shortly thereafter on Dec. 5, 2011.

Faulkner was found not guilty of all charges in September 2012.

In its ruling, the court noted, “there is simply no justification for permitting Mr. Busch’s ability to practice law to go unimpeded after he engaged in such egregious conduct as a public official.”

“If Mr. Busch’s actions were truly negligent and not intentional, he had numerous opportunities to make amends. He made a conscious choice, however, to maintain his misrepresentations to the lower court,” the Supreme Court said in its order.

“We find that Mr. Busch’s pattern of misconduct, coupled with his habit of continuing his dishonest behavior even when provided opportunities to remedy the same, was a detriment to the public office, to the State of West Virginia as his client, to the public who deserved efficiency and protection from the public office, to the legal system, and to the legal profession,” the court said.

Busch contended that he was inexperienced in criminal law and that his conduct was negligent but not intentional. He had suggested a lesser suspension, saying three years was too harsh.

In addition, Busch asked the court to consider the following prior to rendering its decision: “Specifically, he delineates the following mitigating factors: his lack of any prior service as prosecuting attorney and experience in handling criminal cases generally; his attempt to ask the circuit court for guidance in both cases; the absence of any dishonest or selfish motive; the personal and emotional problems created for him as a result of his father’s long-term illness and the loss of his father as a mentor and resource person; his general anxiety disorder for which he has been treated for a number of years; his general good character; and the delay of over one year in these lawyer disciplinary proceedings from his final evidentiary hearing on July 27, 2012, until issuance of the Subcommittee’s report in Aug. 2013.”

Busch was not available for comment.