MORGANTOWN — A motion requesting the dismissal of the Monongalia County Prosecutor’s Office in the case against Eric Kendzerski was filed in Monongalia County Magistrate Court on Friday.
Kendzerski’s lawyer, Andrew Mendelson, of Elkins, who also serves as a state’s assistant attorney general, alleges Monongalia County prosecutor Perri DeChristopher engaged in unethical phone calls with a defendant facing a harassment charge. Mendelson claims a special prosecuting attorney be brought in.
Mendelson said he is representing his client individually, and that he took leave from his position to pursue the case.
Mendelson’s motion — filed Friday in Monongalia County Magistrate Court — alleges DeChristopher spoke on the phone with Kendzerski about his case, giving him instructions and counsel before he had legal representation.
Mendelson has since begun representing Kendzerski pro bono.
The motion claims DeChristopher may have been trying to help her personal friend’s ex-husband. But in that event, she should have told Kendzerski she couldn’t discuss a case her office was prosecuting.
The Dominion Post attempted to contact DeChristopher, but did not receive a response.
Mendelson claims DeChristopher advised Kendzerski to get out of town and obtained privileged information that was adverse to Kendzerski.
Mendelson wrote that he hopes by shining sunlight on the troubling issues found in this case, and others, it will ensure the Monongalia County Prosecuting Attorney’s Office’s top priority is the administration of justice.
DeChristopher prosecuted Kendzerski to the fullest extent of the law and Assistant Prosecutor Gabrielle Mucciola filed an emergency motion to revoke his bond in December 2018, Mendelson wrote. The matter was not heard until March 6, and there had been no contact between Kendzerski and his alleged victim for 78 days, the motion said.
Before the hearing, Mucciola told Mendelson the state would recommend home confinement if Kendzerski pleaded guilty.
Mendelson informed Mucciola that her boss, DeChristopher, was a witness in this case.
The hearing lasted two-and-a-half hours. Magistrate Sandy Holepit revoked Kendzerskis’ bond. Mendelson claims the prosecutor’s office shouldn’t have led a case DeChristopher had a “blatant conflict of interest.” He cited DeChristopher’s office for “abusing its power and not utilizing its discretion to at least withdraw the emergency motion to revoke bond when it was clear from all the evidence that there was never any credible threat and no willful conduct by [Kendzerski].”
On March 8, Mucciola sent a plea offer to Mendelson, which he discussed with Kendzerski for five hours at North Central Regional Jail. Mendelson recalls Kendzerski being dehydrated and in a shaky mental state.
On March 12, at a hearing to reinstate bond, Mendelson requested Kendzerski be brought up so he could go over the plea offer again and was told he would be brought up when Mucciola was ready.
Mucciola reportedly asked Mendelson if Kendzerski was planning to plea. Mendelson replied he discussed the offer with his client in jail but wanted to go over it with him again since Kendzerski’s job requires travel and doesn’t allow for home confinement.
According to the motion, Mucciola asked to amend the plea agreement and wrote that the offer was good only for the day — adding that she would oppose bail if Kendzerski didn’t plea.
That was a violation of her affirmative duty of fairness to defendant, the motion said.
“… Due process requires that a defendant be free of even the apprehension of vindictiveness so that he is not deterred from exercising his procedural rights,” the motion claims.
Holepit re-instated bail for Kendzerski.
Mendelson said he made inquiries into the conduct of DeChristopher’s office and found two troubling cases involving the prosecutors failing to disclose exculpatory evidence and committing a discovery violation.
The motion can’t be heard by a Magistrate and will head to Circuit Court.
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