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Court suspends license of W.Va. assistant AG

September 27, 2013
Associated Press

MORGANTOWN, W.Va. (AP) — An assistant attorney general will lose her West Virginia law license for two years for violating professional rules of conduct while previously serving as public defender for a man appealing a double-murder conviction.

After getting word of the state Supreme Court ruling late Thursday, spokeswoman Beth Ryan said Wendy Elswick will resign her post, effective Friday.

The state Office of Disciplinary Counsel asked the court in February to suspend Elswick's law license for three years, but Elswick contested that.

The court suspended her license for two years instead. Its ruling also requires that she submit to a mental health evaluation, take 12 hours of continuing education in legal ethics, and pay the costs of the court and disciplinary proceedings.

The unsigned opinion says that if Elswick is reinstated in the future, she will be on probation for two years. That means she'll be supervised by another attorney in good standing with the State Bar.

Elswick represented Dana December Smith on appeal of his 1992 conviction for the slayings of Margaret McClain and her daughter, Pamela Castaneda, in the Cabin Creek area of Kanawha County.

Smith argued the crimes were committed by Tommy Lynn Sells, a Texas drifter who was in West Virginia about the same time the women were stabbed to death.

Elswick went to Texas to interview Sells, who was on death row, in 2004.

The opinion says her notes from the meeting show that Sells told her he'd known Smith and that he had been in West Virginia, but Elswick never disclosed the connection.

The revelation could have helped Smith's case.

On May 11, 2004, the opinion says, Sells gave a recorded confession to the killings. He then began writing to Elswick, ultimately exchanging 60 letters with her. They were "rambling and often included obscenities," the opinion says, and in her responses, Elswick encouraged Sells to draw and write poetry.

Her letters to the inmate "tended to be on a personal rather than a professional level and could be viewed as promoting a 'pen pal' relationship with Sells," the opinion said.

Elswick argued she was trying to maintain a rapport to get more information from him.

Elswick asked to be taken off his case in 2005, and her successor was never informed of the connection between Sells and Smith. The inconsistency was discovered later, and Elswick resigned from the public defender's office the following year.

The Supreme Court said it considered several mitigating factors in reducing the suspension of her license, including Elswick's youth, cooperation and lack of previous violations.

Nor had she ever "dealt with a serial killer before, especially of the magnitude of Tommy Lynn Sells," it said.

Another attorney testified Elswick shouldn't have been allowed to travel to Texas alone because she was inexperienced and Sells was "highly manipulative."

Sells, who's been linked to more than a dozen slayings and who has claimed to have committed as many as 70 murders around the county, remains on Texas' death row. In July, the 5th U.S. Circuit Court of Appeals rejected an appeal from Sells, moving him closer to execution.



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