The Office of the Federal Public Defender for the Southern District of West Virginia was established in 1975 with local attorney Carl Duttine appointed as the Federal Public Defender. The office added Leon T. Copeland as Assistant FPD and a secretary. Three years later Mr. Duttine resigned, and Mr. Copeland became the second FPD. For several years the number of staff remained at the same level – three, although the caseload continued to grow each year. Then, as now, the SDWV covered a large area of West Virginia terrain, which included an urban as well as a rural, mountainous demographic.
After Mr. Copeland resigned, Ira F. Kirkendoll, an Assistant FPD from the Kansas Federal Public Defender Office, was appointed FPD. His appointment in January 1987 coincided with a significant increase in the U.S. Attorney’s Office staffing and thus a sharp increase in prosecutions. During Mr. Kirkendoll’s tenure, he oversaw a staff expansion, as well as the acquisition of larger office quarters. He resigned his position three years later to become the FPD in the Northern District of Texas.
Hunt Charach, who was Mr. Kirkendoll’s First Assistant FPD, became the fourth FPD. He served as the FPD until his death in July 2000. It was during Mr. Charach’s tenure that the U.S. Attorney dramatically increased prosecutions, resulting in a much higher caseload for the FPD’s office. Consequently, during the 1990s the FPD Office added two AFPD positions, a legal research and writing specialist, a Computer Systems Administrator, and other support staff positions.
Following Mr. Charach’s passing, Mary Lou Newberger became the fifth FPD in November 2000. She added an additional AFPD in 2004, the first new AFPD position since 1994. Also in 2003, the office accepted its first death-eligible case with Ms. Newberger serving as co-counsel. Ms. Newberger was also instrumental in the revision of the SDWV’s antiquated Criminal Justice Panel Plan in 2004.
When the Supreme Court upended federal sentencing in United States v. Booker, 543 U.S. 220, 244 (2005), by making the Sentencing Guidelines advisory rather than mandatory, Ms. Newberger seized the opportunity to seek the most appropriate sentences for the FPD's clients. The office was one of the first in the nation to have a non-capital mitigation investigator on staff, developed a particular expertise in sentencing mitigation, and worked to share that expertise with CJA panel members. As a result, by 2013 the Southern District of West Virginia had the highest rate of downward variances (sentences below the one called for by the Sentencing Guidelines) in the Fourth Circuit and the eighth highest rate of any district in the country.
The office scored a notable victory in United States v. Divens, 650 F.3d 343 (4th Cir. 2011), in which the Fourth Circuit concluded that the Government could not withhold credit for acceptance of responsibility because Divens refused to enter into a plea agreement in which he waived the right to appeal his sentence. Thanks to a well-developed record and original argument, the court was forced to examine the issue with fresh eyes, even though every other Circuit Court had ruled for the Government in similar cases. Divens created a split among the Circuits that has yet to be resolved.
Between 2008 and 2013, the office was also heavily involved litigating Second Amendment challenges to a number of firearm offenses following District of Columbia v. Heller, 554 U.S. 570 (2008). It was in the midst of those challenges that Senior AFPD Ed Weis’ appeal produced the Fourth Circuit’s now widely accepted two-tier intermediate scrutiny analysis in United States v. Chester, 628 F.3d 673 (4th Cir. 2010).
Following Ms. Newberger’s retirement in 2014, the Court of Appeals for the Fourth Circuit appointed former AFPD Christian Capece as the office’s sixth and current FPD.In 2014, our office was appointed to represent Jimmie Gardner, the former Charleston Wheelers pitcher who was serving a 110 year sentence for 1990 rape and assault convictions. His convictions were based in part on the testimony of Fred Zain, the state's former head serologist, whose fraudulent testimony and scientific practices eventually led to his own criminal prosecution. Assistant Federal Public Defender Rhett Johnson and Research and Writing Attorney Jonathan Byrne filed an amended petition for habeas relief on Mr. Gardner's behalf. In March 2016, the Honorable Judge Goodwin granted the petition and vacated Gardner's convictions, which led to his ultimate release from his wrongful convictions.
The office currently has a staff of 14, with the FPD, six AFPDs, one Legal Writing and Research Attorney, two investigators, one paralegal, one assistant paralegal, a Computer Systems Administrator, an Administrative Officer, and a Case Administrator. The FPD’s headquarters is located in the Robert C. Byrd Courthouse in Charleston, West Virginia, with unstaffed offices in Huntington, Beckley, and Bluefield.
Robert C. Byrd United States Courthouse
300 Virginia Street, East, Suite 3400
Charleston, West Virginia 25301
Phone: 304-347-3350; Facsimile: 304-347-3356