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A West Virginia prosecutor is going to bat for a local judge who whipped out his gun during a trial, dismissing the incident because the gun was only displayed “for a few seconds,” according to documents obtained by The Daily Beast.
Last month, The Daily Beast exposed how Circuit Judge David W. Hummel Jr. scared some of the attorneys in the courtroom, sparking a state ethics investigation. Hummel told this reporter it never happened, but The Daily Beast has since exclusively acquired a courtroom tape that shows him pulling out a pistol and briefly waving it around.
But while the West Virginia Supreme Court of Appeals Judicial Investigation Commission conducts its own ethics probe, a lone prosecutor in the area has shut down a possible parallel criminal investigation.
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In an odd development, Wetzel County Prosecuting Attorney Timothy E. Haught took it upon himself to reach out to one of the lawyers who felt scared that day—simply to tell her that he didn’t think any crime had been committed.
“What I saw on the video tape was Judge Hummel displaying his firearm for a few seconds. It did not appear to me that he pointed his firearm at you or threatened you with the same during that time,” he wrote to Lauren Varnado on July 25.
In the letter, Haught noted that he first heard about what happened “while on vacation in Wyoming” and noted that Varnado had never reported the incident to his office. Haught cautioned her that “in West Virginia, the criminal offense of ‘brandishing’ requires the display or use of a firearm in such a manner as to threaten a breach of the peace.”
Then, in a follow-up letter two weeks later, the prosecutor shut the door on the matter.
“I have reviewed the courtroom video and the audio… and do not find anything that constitutes a violation of West Virginia’s Criminal Code,” he wrote on Aug. 9. “Since I have no complaint or allegation of a crime from you as a purported victim, I am closing my file.”
Haught did not respond to questions on Wednesday when The Daily Beast asked why he believed the judge’s decision to pull out his gun unprovoked was not “threatening.”
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The prosecutor’s actions, while apparently not worthy of criminal charges locally, are drawing scrutiny from legal ethics experts, who say his approach crossed a red line.
Rutgers University law school professor Ronald K. Chen criticized the prosecutor for “trying to run interference for the judge.”
“Frankly, whether what he did would have satisfied the criminal definition of ‘brandishing’ or not seems to be besides the point… to make contact with a potential witness but one who has not complained—and essentially try to wave her off does not seem to be appropriate,” said Chen, who also chairs the New Jersey Supreme Court’s professional ethics committee.
“He sort of dares the possible victim, ‘I don’t think a crime was committed here. You didn’t file a complaint. Am I right?’ That does really seem to be the way a prosecutor would discharge their law enforcement function,” he added.
However, in his letters, even Haught acknowledged that it would be inappropriate to make a judgment call on his own.
“As Judge Hummel is a Circuit Court Judge for Wetzel County and I am an officer of his court and routinely appear before him, I do not feel it is appropriate for me to investigate or make prosecutorial decisions regarding the matter,” Haught wrote in one letter.
Haught offered to pass the matter along to a “special prosecutor.” Legal scholars told The Daily Beast that a local prosecutor would have every reason to distance themselves from such a case—particularly in a sparsely populated small city like New Martinsville.
Richard Zitrin, a professor at University of California Hastings law school, expressed concern that Haught’s letter “creates an atmosphere of partiality on the part of the prosecutor.”
“He is supposed to investigate, not make a determination without talking to the witness,” said Zitrin, who recently authored a book called Trial Lawyer: A Life Representing People Against Power.
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“It’s fine for prosecutors to talk to prospective witnesses. But it’s not fine for prosecutors to contact witnesses before the prosecutor knows what the witness is going to say and tell them that it’s not a crime. That’s completely inappropriate,” he said.
Varnado, who previously spoke to The Daily Beast about how shocked and threatened she felt, declined to comment on her interactions with the prosecutor’s office. In July, she received a letter from attorneys representing the judge that suggested he might be suing her personally for speaking out about what happened.
“We are currently investigating your statements and their effect upon Judge Hummel’s reputation… we demand that you cease and desist publishing false statements concerning Judge Hummel,” attorneys Robert P. Fitzsimmons and Mark A. Colantonio wrote on July 21.
When The Daily Beast first spoke to Hummel in March, the judge immediately professed that nothing of the sort ever happened.
“There is no incident… I absolutely, categorically deny I had a gun that day in the courtroom,” he said. “It was just me and the attorneys. I had no reason to have a firearm that day… I’ve never shown a gun in my courtroom to anybody. I don’t want them to know that I have it. I do not display my firearm at any time during trial.”
“My job is not to protect anyone with firearms,” he added. “That’s what my bailiffs and deputy sheriffs are for.”
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But Hummel repeatedly called back, changing his story and coyly revealing that he did indeed have a gun—at some point. During a subsequent phone call, he recalled having a holstered gun on him beneath his robe during the trial the previous week—but not the .45-caliber 1911 semiautomatic pistol in question. Instead, he said, he had a long, classic-looking revolver chambered in the same caliber that hails from the days of the Wild West.
“I wore the Colt Peacemaker,” he said. “The Peacemaker never ever came out of the holster during that trial.”
During a third phone call, the judge remembered showing attorneys an object—but not a gun.
“I did pull out a small, red first aid kit. But it was casual. I did show her a foiled packet, and said this is blood coagulant. We have preparations for active shooter situations,” he said.
At the time, The Daily Beast asked if the judge was aware of the existence of any video footage that would counter his claims. The judge said he knew of no such evidence.
Last week, The Daily Beast filed a public records request with the Wetzel County Sheriff’s Office, which maintained a copy of the courtroom security footage. We received the video on Friday.
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In the video, which incorrectly displays the local time an hour ahead, the judge is seen starting the special Saturday morning meeting in court around 9 a.m. One minute into the proceeding, he is seen placing his dark-colored handgun on the bench. Ten minutes later, he is seen briefly waving it in the air as he speaks to Varnado, her New York law partner David R. Dehoney, and their local West Virginia attorney Jennifer Hicks.
According to correspondence reviewed by The Daily Beast, that video is now evidence in the ethics probe. Judicial Commission investigator David Hudson has questioned others who were in the courtroom that day and has already received official statements from the judge and his staff, according to two sources with direct knowledge of the investigation.
The state judiciary has not provided details about the probe, but its staff pointed to its website, which indicates that judges who violate the rules face a one-year suspension.
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