Cavanagh claims lawyer gave him bad advice
Michael J. Cavanagh took the stand in Fayette County Court on Thursday, claiming that his trial attorney ignored repeated requests to make motions and gave him bad advice. Cavanagh, of Marion Street, Uniontown, was convicted of auto insurance fraud and related charges in 2001. He is attempting to have his conviction overturned based on ineffective trial and appellate lawyers. A judge will rule on the request at a later date.
State prosecutors contended that Cavanagh, a former candidate for the state Legislature, falsified an auto repair bill that he faxed to an insurance company two years after a 1996 accident. The company determined the claim was fraudulent. He was convicted after a jury trial, but did not offer testimony in his own defense. He was sentenced to two to 23 months in prison, and testified that state parole officers told him he finished serving his sentence earlier this summer.
Under questioning from his attorney, Herbert A. Terrell, Cavanagh testified that his trial attorney, Brent Eric Peck, ignored his requests to ask for a change of venue until the morning of his trial. That request was denied.
“For all the publicity, the politics and my brother being a seated county commissioner, it’s unconscionable to me that there was not a change of venue,” Cavanagh said, referring to his brother, former county commissioner Sean M. Cavanagh, who was in office at the time of Michael Cavanagh’s trial.
County judges typically deny change-of-venue requests, with the caveat that they can be presented again if the judge presiding over the trial cannot find an impartial jury during the selection process.
Cavanagh also testified that Peck erred in not challenging the jurisdiction of the Fayette County Court to hear the case in the first place, because the accident upon which the case was based occurred in Maryland.
Cavanagh claimed that Peck never discussed calling character witnesses with him. He said he could have “lined the court up for two days with people willing to testify to my good character,” but Peck testified that they discussed it, and made a strategic decision not to call such witnesses.
“I thought it would be odd to have character testimony about someone’s honesty if they were not going to testify,” Peck said.
Cavanagh did not testify, Peck said, because he admitted to making the fake invoice from the repair shop. Peck testified that Cavanagh did not admit to him that he faxed the document.
Nonetheless, Peck testified that he did not want to put Cavanagh on the stand and force him to “skirt the issue” about the invoice or lie to the jury.
Cavanagh testified he did not make that admission to Peck and had nothing to do with the document.
The issue of character testimony was one of the strongest reasons that appellate attorney Robert Stewart said he came across. And while Stewart argued that issue to both the state Superior and Supreme courts, neither reversed Cavanagh’s conviction.
Cavanagh claimed Stewart ignored the plethora of other issues, including a sleeping juror and the jurisdiction and venue issues that could have resulted in a new trial.
Stewart testified that Cavanagh never brought the allegation of a sleeping juror to his attention, or he would have investigated further.
During a morning of testimony, Cavanagh also testified that Peck “wasn’t himself” during the trial.
“The best way I can describe it is he seemed not in complete control of himself,” Cavanagh testified.
He said that he met with Peck “up to 10 times” before the trial and knew his demeanor, intimating during his testimony that Peck either had alcohol or drugs in his system. Peck denied both allegations.
Later, Cavanagh told Deputy Attorney General J. Scott Robinette that, although they met several times before the trial, Peck still wasn’t prepared.
“Meeting with somebody and adequately preparing for something are two different things,” he testified.
Although he had reservations about Peck, Cavanagh testified that he never brought his concerns to the attention of Judge Ralph C. Warman, who was presiding over the trial.
Earlier this year, Peck pleaded guilty to driving under the influence of alcohol. He had been in a pretrial diversionary program, but was removed because a test showed cocaine in his system.
At a subsequent hearing on his removal, Peck’s attorney said he sought rehabilitation for the problems.
Terrell tried to question how jury verdicts affected employment opportunities, but Robinette objected.
Warman agreed, noting that the effect had nothing to do with whether Cavanagh received a fair trial.
After the hearing, Cavanagh said having the charges thrown out remains important to him, even though he has served his sentence.
“It’s my name,” he said.
He also indicated that before the time limit runs out later this month, he will file a civil rights action against the county.
Cavanagh has alleged that after his Supreme Court appeal was turned down, Warman ordered two county adult probation officers to cross into West Virginia and pick him up to begin serving his jail sentence. He had been out on bond, pending appeal.
Cavanagh contends that those officers broke the law when they crossed the state line and took him into custody Aug. 21, 2003.
From that date, he has two years to file suit.