Last updated: July 26. 2013 3:06PM - 946 Views

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CHARLESTON — The three candidates forwarded to Governor Earl Ray Tomblin for consideration to replace former Delegate Josh Stowers in the legislature backed off of their stated commitments to support the “entire Democrat platform of the state of West Virginia and the national Democrat party” Friday. In addition, it was determined that one of the three candidates has been investigated by the lawyer Office of Disciplinary Council. That candidate, Wendy Elswick, has challenged a council recommendation that her law license be suspended for three years because of ethics violations.

The state supreme court is set to hear Elswick’s appeal in September, according to court sources. The charges against Elswick stem from her relationship with a Texas death row inmate while representing a client when she worked in the public defender’s office.

According to testimony compiled by the disciplinary council, Elswick elicited false information from serial killer Tommy Lynn Sells and concealed evidence that her client, Dana December Smith and Sells were acquainted with each other. In releasing its 45-page finding in February, the council called for the suspension of Elswick’s license “for at least three years.”

The ODC found , in the investigation instituted by Elswick’s public defender supervisor George Castelle, that the attorney hid notes and letters that showed that Smith and Sells had met before, while continuously assuring the court that they were not acquainted.

In the course of the investigation, ODC officials found that Elswick had an on-going correspondence relationship with Sells. She also visited the Texas inmate at least twice. Although Elswick insisted that Texas authorities recommended she “get closer” to Sells to learn more about the case, the ODC investigators found personal references in the correspondence that they deemed inappropriate.

For example, the ODC said Elswick wrote Sells about her personal life, including references to a strained relationship with her father and how she felt “stupid” and “poor” in law school. In return, Sells sent Elswick vivid “rape fantasies” and at one point made reference to the attorney’s breasts.

Although Elswick eventually resigned from the case, the ODC found that her activities jeopardized her client’s chances of winning an appeal. Both Sells and Smith remain in prison, with Sells on death row.

The information about Elswick’s legal problems apparently were unknown to members of the Twenty-second Delegate District Executive Committee, who met at the Lincoln County courthouse Thursday to select the three nominees. One member, Dan Cook of Putnam County, said he had “no idea” Elswick was in trouble with the ODC. While he was not certain if the information would have altered his vote for Elswick, he added that this is why it’s a two-step process. “I assume the governor can now check all three of these people a lot better than we could. He holds the key to checks and balances,” Cook said.

Danville Town Manager Josh Barker emerged as the favorite to replace Stowers, since he received the endorsement of all eight committee members. Union organizer Gary McCallister was second, with seven votes and Elswick received four.

With regard to the rights of gays and abortionists, as supported by the national Democrat party platform, McCallister later told a reporter he “cannot support gay rights because of my church.” Barker said he is a “lifelong Democrat through and through,” but said he does not support gay or abortion rights. Elswick refused to answer a reporter’s question after telling the assembled committee that she “supports every word of the platforms.” In response to a reporter’s repeated question regarding gay rights, Elswick continuously responded, “I want to do what’s best for the citizens of the Twenty-second District.”

It is now up to Governor Earl Ray Tomblin to select the replacement for Stowers from among the three names submitted. He has five days from the time state Party Executive Chairman Larry Puccio gets the names to him to make a decision. A spokesman for the governor said he did not believe the governor would make an appointment “before next week. I don’t think there’ll be a selection over the weekend.”

Both Dempsey and State Democrat Executive Director Jacob Winowich said they had no knowledge of the legal proceedings pending with regard to Elswick. She is currently listed as an assistant state attorney general but did not return repeated phone calls to her office Friday.

Nobody answered repeated phone calls to the governor’s press office Friday nor did a gubernatorial aide immediately return a reporter’s call after reports emerged that Elswick was withdrawing her name as a candidate Friday afternoon.

— Ron Gregory may be reached at ronjgregory@gmail.com

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