Odell Morgan v. Scott Smith, Ohio County Prosecuting Attorney, 21-0291

Petitioner Odell Morgan (self-represented) was convicted in 2008 of kidnapping, multiple counts of second-degree sexual assault, abduction with intent to defile, and conspiracy; his direct appeal was previously affirmed.
In October 2019 Morgan applied to the circuit court for permission to present a complaint to the grand jury, alleging that prosecutorial personnel suborned perjured testimony by an investigating officer about a co-defendant’s actions.
The circuit court denied the application in October/November 2019; this Court reversed and remanded in 2020 with directions to evaluate the application under this Court’s Dreyfuse procedure.
Morgan filed a motion (Dec. 21, 2020) and a renewed motion to disqualify the Ohio County Prosecuting Attorney’s Office (Scott Smith) from handling his application; the circuit court denied the original motion (Feb. 25, 2021) and the renewed motion (Mar. 31, 2021).
Morgan argued Smith had a conflict because a former assistant prosecutor (Joseph Barki, III) allegedly suborned perjury and Smith participated in the relevant grand jury proceedings; he sought disqualification and a Dreyfuse hearing.
The circuit court found Barki no longer employed, that Morgan offered only unsubstantiated assertions, provided the application to the prosecutor per Dreyfuse, and denied disqualification; the West Virginia Supreme Court affirmed and directed continued compliance with Dreyfuse.

Issue	Plaintiff's Argument (Morgan)	Defendant's Argument (Smith/County)	Held
Whether the circuit court erred in denying motion to disqualify the prosecutor's office	Smith participated in relevant grand jury proceedings and a former assistant (Barki) suborned perjury; impartiality compromised	Barki was no longer employed; no independent evidence Smith suborned perjury or has a disqualifying conflict	Denial affirmed; no abuse of discretion—Morgan relied on bald assertions
Whether the circuit court’s orders lacked sufficient findings for appellate review	Court failed to state findings/legal analysis explaining denial	Court’s orders identified key facts (Barki not employed; lack of substantiation) and are sufficient	Orders adequate; no reversible error
Whether a Dreyfuse in-camera hearing was required at that stage	Court failed to conduct the Dreyfuse hearing as directed	Circuit court complied by providing the application to the prosecutor and reserved in-camera review if prosecutor declines or fails to act	No error; court followed Dreyfuse procedure and was directed to continue compliance
Standard of review for disqualification rulings	(implicit) trial court should be reversed for error	Disqualification reviewed for abuse of discretion	Court applied abuse-of-discretion standard and found no abuse

In re Application to Present Complaint to the Grand Jury, 243 W. Va. 190, 842 S.E.2d 743 (2020) (establishes procedure when private citizen seeks to present complaint to grand jury and courts’ in-camera review steps)
Nicholas v. Sammons, 178 W. Va. 631, 363 S.E.2d 516 (1987) (defines two categories of prosecutorial disqualification: privileged information and personal interest)
State v. Keenan, 213 W. Va. 557, 584 S.E.2d 191 (2003) (disqualification reviewed for abuse of discretion)
State ex rel. Matko v. Ziegler, 154 W. Va. 872, 179 S.E.2d 735 (1971) (circuit courts may disqualify a prosecuting attorney and appoint a special prosecutor)
State v. Knight, 168 W. Va. 615, 285 S.E.2d 401 (1981) (conflicts or interests can erode public confidence in prosecutorial impartiality)