CHARLESTON - Special counsel arguing against Randolph County Circuit Judge Jaymie Wilfong have recommended a four-year suspension without pay, according to documents released
After months of investigation by the Judicial Investigation Commission, Wilfong faced a nine-member Judicial Hearing Board Aug. 11 over an alleged two-year affair with the director of North Central Community Corrections, Travis Carter.
After the hearing, attorneys on both sides were given seven days to file post-hearing briefs summarizing their cases. Those documents were filed on Tuesday.
The hearing board will make a recommendation to the West Virginia Supreme Court, where the final decision will be made.
The Judicial Investigation Commission charged Wilfong with violating four canons of the Code of Judicial Conduct: integrity and independence of the judiciary; impropriety and the appearance of impropriety; impartial performance of duties; and conduct of extra-judicial activities to minimize the risk of conflict with judicial obligations.
Wilfong admitted to violating the first two canons, but maintains she did not violate the other two, according to testimony during the hearing.
Arguing against Wilfong, the West Virginia Office of Lawyer Disciplinary Counsel was represented by Rachael L. Fletcher Cipoletti and David A. Jividen.
In their brief, Cipoletti and Jividen said Wilfong's actions were ethical violations.
"Judge Wilfong utilized her position of power and influence to gain resources for Carter by lobbying the president of the Randolph County Commission," the attorneys wrote.
In their summary, Cipoletti and Jividen argued Wilfong failed to disclose or disqualify herself in cases that involved Carter and his staff.
"She involved other members of the Bar to further her relationship with Carter and failed to disqualify herself from cases that involved those lawyers," according to brief.
The recommendation for suspension also states that Wilfong "utilized her judicial chamber in the people's court house to perform sexual acts upon Carter and relied upon her staff to explain Carter's constant presence in her office to the public."
Wilfong's pursuit of Carter impaired both the court and the NCCC's ability to function, Cipoletti and Jividen argued. Her misconduct calls into question her judgment and brought the Randolph County justice system into disrepute, they said.
"Public confidence in the judiciary is a fragile thing. Judge Wilfong should be suspended from office not to punish the judge for (her) extensive wrongdoing, but to relieve from the bench a person whose further service will be detrimental to the judicial branch of government," the attorneys wrote.
Wilfong was represented by attorneys David Sims and Harry G. Deitzler.
In their summary brief, they argued that Wilfong does not make any excuses for the affair or attempt to justify her actions.
"There is no excuse for her behavior, professionally or personally. She does, however, ask the Judicial hearing Board to look at her circumstances and judge her fairly and impartially," Wilfong's attorneys wrote.
The panel should "consider her 12 years on the bench - not just this transgression, which was played out publicly - when determining her fate," Sims and Deitzler wrote.
In their brief, Sims and Deitzler asked that the panel make a fair decision supported by clear and convincing evidence.
"She is not deserving of the death sentence that Special Council wants to be imposed. Reject the notion that Judge Wilfong cannot be trusted to continue to do what the people of Randolph County elected her to do; if those people no longer trust her, let them remove her from office. Reprimand her for her conduct and give her a second chance. She deserves it," Wilfong's attorneys wrote.
The two-year extra-marital relationship occurred while both Wilfong and Carter were serving in their official capacities, with Wilfong sitting on the Correctional Board as a non-voting member. During that period, the judge sentenced several offenders to the program.
The JIC issued its formal statement of charges on April 17, nearly six months after Wilfong self- reported the relationship. The judge issued her official response April 26.
In Wilfong's filing, she admitted to performing oral sex on Carter in her office "three or less times" and to sending sexually explicit photographs and text messages to Carter on his county-issued cell phone.
Carter resigned his community corrections post in December 2013.
Since the initial JIC filings, Wilfong has spent limited time on the bench. In late April, Randolph County Prosecuting Attorney Michael Parker, Randolph County Assistant Prosecuting Attorney Lori Gray and several other area attorneys filed motions to disqualify Judge Wilfong from hearing their cases. The motions were granted by the state Supreme Court. Parker, Wilfong's law clerk Mary Wendekier; attorney Christopher Cooper; and a group of attorneys, R. Mike Mullens, Heather Weese, Raymond LaMora and David Wilmoth, filed complaints with the JIC against Wilfong over the relationship.
Senior Status Judges Thomas W. Steptoe Jr. and Thomas H. Keadle have been filling in for Wilfong since the motions to disqualify were granted.