WHEELING - Chief Public Defender Shayne Welling will argue this afternoon that Prosecutor Scott Smith's request to hold Charles Severance without bond is "irrelevant, reckless, unsupported and premature."
Wheeling police arrested Severance, 53, of Alexandria, Va., Thursday at the Ohio County Public Library, in response to a tip from the Federal Bureau of Investigation alleging he is wanted on a fugitive warrant out of Virginia for a firearms violation.
The next day, Magistrate Joe Roxby set a cash bond of $100,000.
On Monday, Circuit Judge James Mazzone granted Smith's motion to hold Severance without bond after Smith said Severance is being investigated by Alexandria authorities regarding three murders in 2003, 2013 and in February of this year. Welling argued the bond was excessive and the entire proceeding was pretextual because the only charge alleged in the fugitive warrant is felon in possession of a firearm.
Mazzone set a bond hearing for 1:30 p.m. today, at which Welling will spell out his assessment of the facts and circumstances surrounding the arrest, which are outlined in a motion filed by Welling late Tuesday.
A major point of contention is that police arrested Severance shortly after noon Thursday "for unknown reasons." Additionally, Welling said it appears authorities did not officially serve Severance with the warrant until 10 hours later at 10:08 p.m., and Severance was not arraigned until Friday morning.
"Respondent was unconditionally denied prompt presentment to a judicial officer following his arrest," Welling's motion states.
Welling also writes that the court "must begin its inquiry into the State's passion-laced motion" by determining whether the case being heard in Ohio County deals with a fugitive from justice being held on a non-violent possession charge, or whether the warrant is being used instead to detain Severance in order to investigate the deaths.
He said Severance should only face extradition for the low-level Class Six felony, and the bond should reflect that.
However, if the warrant is intended to allow investigation into other matters, the extradition must be dismissed as improper.
"While abusing authority may be appropriate in the Commonwealth, West Virginia does not sanction the abuse of police powers," Welling wrote. "The use of the arrest power as a sham to apprehend a person for purposes for further investigation on another charge is so dangerous an intrusion of privacy as to require exclusion of any evidence seized as an incident of such pretextual arrest."
He said he theorizes that Smith's "reliance upon speculation, hype and conjecture to support his motion offers the best evidence the firearms warrant is a fraud designed to deprive the respondent of his liberty interests in order to buy the Commonwealth time to investigate other matters. West Virginia must avoid colluding with the Commonweath on such an obvious sham arrests."
Welling also points to Smith's post-hearing interviews Monday, during which he identified Severance as a suspect in the Virginia murders. Alexandria police have stated it is premature to name him as the only possible suspect.
"This position by a West Virginia prosecutor appears inconsistent with the position of Virginia authorities," Welling writes. "In unfairly demonizing the respondent through careless and poorly crafted speech, the State of West Virginia yields one of two observations. Either the City of Alexandria is misleading the public or the Ohio County Prosecutor's Office is misrepresenting the respondent's status in another investigation. The important distinction lies in the question of which official state agency is using misinformation to unlawfully deprive the respondent of his freedom?"
Welling said Smith cannot support his claim that Severance is a danger to society because the two firearms involved in the charge are not accounted for and Severance was the last person to have access to them.
"It should be noted that no firearms are reported to have been found on the respondent or with (his) property at the time of his arrest," he wrote. "Furthermore, the State's assertion 'one of the last persons to have access' implies the respondent may have never possessed a firearm. The State has provided nothing to support this self-serving assertion."
Welling is also challenging Smith's allegation that Severance fled from Virginia upon hearing authorities were looking for him. He argues the Loudoun County warrant was not issued until approximately 11:29 p.m. March 12 - a date and time well after Severance reportedly left the area.
The motion asks that Smith "source, authenticate and present the 'evidence' upon which the State seeks to restrain this man without bond."
Additionally, Welling said Smith's motion to modify bond is premature, as Severance does not have the financial ability to post a $100,000 cash bond.