Five of the eleven defendants in the Cass Scenic Railroad State Park scrap metal case appeared Thursday in Pocahontas County Circuit Court for pre-trial conferences.

Attorneys for several of the defendants took issue with the wording of the indictments handed up by the Pocahontas County Grand Jury in December. The indictments were peppered with grammatical and legal errors. In some cases, the indictments charged one crime but then went on to describe a completely different offense.

The indictments included a total of 11 defendants charged in connection with the alleged theft of scrap metal from Cass Scenic Railroad State Park

"We essentially inherited the indictments of the December Grand Jury," Assistant Prosecuting Attorney Robert Martin told Circuit Judge Joseph Pomponio, Jr., during the hearing for former Cass Train Master Fred Bartels.

Those indictments were prepared by the office of former Prosecuting Attorney Donna Price, who lost her reelection bid to attorney Eugene Simmons in November. Simmons took office on January 1.

According to West Virginia rules of criminal procedure and state case law, each indictment is supposed to end with the words "against the peace and dignity of the State of West Virginia." That phrase is then followed by the section of West Virginia code that was alleged to have been violated.

In all 26 of the December Grand Jury's indictments, those phrases were incorrectly written.

In one example, representative of all the indictments, the text was originally written as "... against the peace and dignity of the State of West Virginia Code, Chapter 61, Article 10, Section 31, as amended."

Martin asked the court to allow each indictment to be amended, with the insertion of a period after the words "West Virginia."

Attorney Frank Bush, representing Bartels, and attorney Martin Saffer, representing a defendant in an unrelated case, argued the the grammatical error rendered the indictments "fatally flawed." As such, the attorney's argued the charges should be dismissed.

"Why is the state's corrective action not adequate?" Pomponio asked Bush.

"Because it's just wrong," the attorney replied.

The arguments of Bush and Saffer notwithstanding, Pomponio ruled that the indictments could be amended as requested by Martin and Simmons.

Thomas White, representing former Cass Scenic Railroad State Park Superintendent David Caplinger, said he had no objection to the amendment in his client's case. Caplinger is charged with one felony count of conspiracy in connection with the scrap metal case.

Saffer also sought to have Martin removed from the cases he was assigned by Simmons. Citing West Virginia Code 7-7-7, Saffer noted that the Prosecuting Attorney can appoint and employ assistants and employees "by and with the advice and consent of the county commission."

Saffer argued that Simmons did not have the "advice and consent" of the commission to hire Martin. The commission declined Simmons' request to approve Martin's hiring at its January 22 meeting, after commissioners were made aware of a pending charge against Martin in Monongalia County Magistrate Court.

In a criminal complaint dated October 20, 2012, Martin was charged with misdemeanor public intoxication and obstructing an officer after an alleged fight at the West Virginia University versus Kansas State football game.

According to the Monongalia County Magistrate's office, Martin has pleaded not guilty to the charges. A hearing has been scheduled for May 2.

Until the commission approves Simmons' hiring of Martin, Saffer argued it was "improper" for Martin to represent the county and sign court pleadings.

"I ask that we not overlay another mistake," said Saffer, referring to the grammatical errors in the December indictments.

"I have the authority to hire whomever I want," said Simmons. "Mr. Saffer has sour grapes."

"I can hire [Martin] as an individual attorney," Simmons added.

Pomponio ruled in Simmons' favor.

"As far as I'm concerned, I'm going to find Mr. Martin was properly hired and duly appointed Assistant Prosecuting Attorney for Pocahontas County," said Pomponio.

While defense attorneys lost the first two battles Thursday, several defendants had charges dismissed due to errors in their indictments.

Bartels was charged with fraudulent scheme, but the indictment goes on to describe receiving or transferring stolen goods.

"It is imperative that the essential elements of that crime be described in the indictment," argued Bush. "How is Mr. Bartels supposed to know what he is charged with?"

In that instance—and in several like it—Pomponio found the charges were fatally flawed and ruled that they be dismissed.

Bartels remains charged with conspiracy in connection with the Cass scrap metal case.

Representing co-defendant Michael Cromer, attorney J.L Clifton said he understood Simmons was considering dismissing all of the botched December indictments and "starting from scratch."

In his case, Clifton pointed the repeated misspelling of his client's name, a number of missing periods and using the word "feloniously" to describe an alleged misdemeanor offense of petit larceny.

"It appears the indictments were prepared in haste," said Clifton. "It takes a flow chart to follow the 'to wits.'"

Clifton said he knew the errors were not the fault of the current prosecutor's office, but he said he believed the state had a duty to dismiss all three of the charges against Cromer, due to the numerous errors.

Martin said the Prosecuting Attorney's office did consider scraping the the December charges and starting from scratch, but Martin said the office felt a duty to expedite the cases due to the seriousness of the charges and the fact that many of the defendants had already posted bond.

Pomponio dismissed the petit larceny and fraudulent scheme charges, leaving Cromer facing a felony conspiracy charge.

Likewise, Pomponio dismissed the fraudulent scheme charges against Bradley McDaniel and Michael Wolfe, who are also defendants in the Cass case. McDaniel remains charged with one county of felony conspiracy. Wolfe faces charges of misdemeanor petit larceny and felony conspiracy.

For further proceedings from Thursday and Friday, see this week's Circuit Court report.