Confusion unleashed after prosecution accuses defense of criminality

Apr. 26—FAIRMONT — Marion County Prosecutor Sean Murphy accused attorney Jared Moore of committing a felony while representing accused killer Jonathon Matthew Biller on Thursday morning.

Murphy made the accusation during a pretrial motion hearing in Judge David Janes's courtroom. Biller, linked to the Pagan Motorcycle Club, is accused of killing Henry Silver in September 2022.

"[Moore] has engaged in criminal conduct and generalized skullduggery which is outlandish and astonishing violation of his duties," Murphy wrote in a motion filed to the court seeking Moore's removal as Biller's attorney.

Murphy's accusation rests on Moore's use of a blank subpoena obtained from the Circuit Clerk's Office on June 23, 2023. Moore reused the blank subpoena six times, Murphy said, each time altering the document issued by the circuit clerk. Murphy said this violates both the West Virginia Rules of Civil Procedure and West Virginia Code dealing with record forgeries. The West Virginia statute Murphy cited carries a felony consequence for violating it.

"You can't get one blank subpoena and use it over and over again," Murphy said in court.

Murphy accused Moore of using the subpoenas to play investigator without disclosing the results of his investigation to the state under the rules of discovery. According to the American Bar Association, discovery is the formal process before trial by which two parties exchange information on evidence and witnesses. This is done to avoid "trial by ambush," where one side doesn't reveal what evidence they plan to use which prevents the opposing side from finding a rebuttal.

Moore also became the attorney of one of the witnesses in the case, Murphy said, creating a conflict of interest. Moore used the subpoenas he copied to obtain phone and other records related to Biller's case on the witness's behalf, which Murphy argued didn't belong to the defendant. They belonged to the witness, making Moore's action to retrieve them improper.

Although Murphy gave Moore the chance to invoke the Fifth Amendment, Moore chose to defend himself against the accusations in front of Judge Janes.

"This is nothing more than an underhanded attempt to deprive Mr. Biller of his constitutional right to representation of his choice," Moore said in court.

Moore argued he did nothing wrong, citing rule 17a of West Virginia Rules of Criminal Procedure, which states that a clerk can issue a subpoena that is signed and sealed but otherwise blank to the party requesting it. Moore submitted a legal filing to the court defending himself. It states the records he obtained, namely some telephone and CashApp records, belong to the defendant. Moore also disclosed the subpoenas to the state in line with procedure, according to the filing.

As for the witness, Moore explained the witness is not a witness in the defendant's criminal trial because she was not present the night of the crime. Moore said he represented the witness in a limited manner that made it possible to obtain the cellphone records for both Biller and his wife. Biller and his wife were on the witness's cellphone account. No conflict of interest arose while representing Biller and the witness, Moore said, because he confirmed the witness wouldn't be a witness at Biller's trial, explained what his purpose was in representing her and obtained her consent to carry out his action to obtain the phone records for the purpose of defending Biller.

"The state cannot change the facts and make her a witness simply by listing her as such," Moore's filing reads.

However, during an interview, the witness told Detective Matthew Pigott she had no agreement with Moore nor had signed any release allowing Moore to obtain cellphone records on her behalf, according to Murphy's filing.

Moore also brought up a previous instance where Murphy tried to have him admonished. During the trial of Steven Tucker, Moore said in his filing that Murphy had made personal attacks on Moore's legal ethics and professional standing. The heart of Murphy's contention at the time was that Moore misrepresented case law to the court during trial. However, Judge Patrick Wilson denied the motion without hearing arguments, the filing states. Moore also wrote this was not the first time Murphy unjustifiably attacked opposing counsel through a publicly filed document in a case covered by the media.

Murphy said Moore's conduct threatened the outcome of the trial, making it impossible to give Biller a fair hearing. Murphy argued any conviction against Biller would run the risk of being vacated on appeal due to Moore's conduct.

However, Moore argued the purpose of the state's motion was to gain a tactical advantage against Biller. In his filing, Moore pointed out the state was still filing search warrants against Biller even as recently as April 10. The court had Biller's trial scheduled for April 29. Furthermore, the burden of proof for removing an attorney from a case is high, which Moore said the state has not proved. Moore said Biller has a strong desire for Moore to continue representing him, and the court should not deny Biller his choice of counsel based on what Moore called unfounded evidence.

Murphy said he had notified the Office of Disciplinary Counsel about Moore's actions. In his filing, Murphy states that Moore himself demanded the state inform the Office of Disciplinary counsel. Murphy's filing also said the state intends to go after Murphy for alleged violations of the law.

Janes postponed the trial, ruling that the issue must be determined before trial. He rejected any notion of settling it within the one hour provided for the pretrial hearing. The new date will fall somewhere around July. Janes also gave the attorneys two weeks to type up their cases before presenting them in court at another hearing.

Janes indicated he had a lot of legal research in front of him.

"This is a profound issue, not to be determined lightly," Janes said. "I've done this for 47 years, and I don't know how to answer this question."

Reach Esteban at efernandez@timeswv.com