by Matt Harvey

ASSISTANT MANAGING EDITOR

CLARKSBURG -- Chief Circuit Judge John Lewis Marks Jr. on Tuesday extensively questioned a veteran city defense attorney over a motion the attorney recently filed for a client. Through the motion, the lawyer's client is accusing former Harrison County Prosecutor John Scott of prosecutorial misconduct.

The motion was filed late last week by lawyer Thomas Dyer on behalf of Clifford Merritt, 33, of Clarksburg, who last year was convicted of breaking and entering and second-degree robbery. Merritt hopes to overturn those convictions and thereby block pending recidivist, or career criminal, proceedings that were initiated by the prosecutor's office before Scott resigned. The recidivist proceedings have the potential to send Merritt to prison for life.

Judge Marks noted that Dyer's motion on behalf of Merritt made a "very, very, very serious allegation" against Scott. The document, which alleges Scott received $2,500 and gold chains from Merritt, basically alleges Merritt paid Scott a bribe, Marks said. The judge also pointed out that by signing a verification that the allegations in the motion are correct, Merritt was admitting to committing a felony.

Marks questioned why the allegation of prosecutorial misconduct wasn't filed last year, while Merritt was on trial for the breaking and entering of a business, as well as the robbery of a box of money from Bob Evans employees who were on the way to the bank to deposit it. The judge also noted that the motion alleges a charge in an entirely different case was dropped in return for the money and the chains. Marks asked Dyer how that was possibly related to the breaking and entering and the robbery.

On the timeliness of the motion, Dyer said Merritt had asked his attorney at the trials, Hance Price, to bring the allegations to the court's attention, but Price refused. Dyer said he could not speak for Price, but Dyer indicated he at least could understand why an attorney would have been reluctant to bring such a motion.

Once he became Merritt's lawyer, Dyer said he was told of the allegations but also at first was "not only reluctant, but flatly refused" to bring the motion. Dyer did agree to check into Merritt's accusations, however.

The lawyer told Marks he subsequently interviewed a man Merritt has claimed set up the alleged deal with Scott. That man's responses to Dyer's questions caused him "tremendous concern," Dyer said, without elaborating further.

Dyer also noted the court had received a letter from the U.S. Attorney's Office. The letter, from Assistant U.S. Attorney Shawn Morgan and dated Feb. 5, said Merritt recently assisted an FBI investigation, although the document didn't discuss who was being investigated. The letter does note the recidivist proceedings against Merritt and says he provided "what we believe to be truthful historical information. ... Regardless of the outcome of the recidivism matter, the agents and I wanted to recognize his significant effort."

In addition, Dyer told Marks he had talked with officials from the FBI and the U.S. Attorney's Office. And, Dyer said, he recently set up a polygraph examination for Merritt.

Dyer said he filed the motion only after taking all those steps.

As for how the allegations might impact the Bob Evans robbery case, Dyer cited a surveillance tape that was said to be damaged or erased before his client and Price could view it. Dyer said Merritt is attempting to prove there may have been a "serious motive" that could be linked to what happened in the Bob Evans robbery case. Merritt believes the tape could have proved his innocence in that Bob Evans case.

Scott and the man said by the motion to have set up the alleged deal were to have testified at Tuesday's hearing. However, they were excused from appearing at the hearing shortly prior to the court session when Special Prosecutor Scott Reynolds asked to withdraw from the case, citing a potential conflict. Reynolds, a former employee under Scott, has sued Scott in Harrison County Circuit Court over job-related matters.

Marks allowed Reynolds to withdraw and said another special prosecutor will be appointed. He set the next hearing for 3 p.m. April 23.

Area attorney Gregory H. Schillace, who has represented Scott in other matters, also told Marks during the hearing he may represent Scott in this case.

The judge said he wants all those involved to fully understand their rights before any testimony is taken in next week's hearing.