NEW CUMBERLAND - A judge is asking for the appointment of a special prosecutor in the embezzlement case involving former Weirton Mayor Mark Harris.
First Judicial Circuit Judge David J. Sims said in an order filed earlier this week in Hancock County that the case would be referred to the West Virginia Prosecuting Attorneys Institute for the appointment of a special prosecutor.
The move comes about three months after Hancock County Prosecutor Jim Davis and First Judicial Circuit Judge Martin J. Gaughan recused themselves from the case for unspecified conflicts of interest.
Following the recusals, Sims and Hancock County Assistant Prosecutor David F. Cross were assigned to the case. Cross also is an assistant prosecutor for Brooke County.
Davis filed a motion in January asking to be disqualified from the case because his daughter is Weirton City Clerk Nicole Davis. The motion, which also asked for the disqualification of anyone in Davis' office, said the daughter's employment as clerk began when Harris was mayor.
"This basically gets my entire office out now," Davis said.
Harris, 44, who now lives in Myrtle Beach, S.C., was indicted by a Hancock County grand jury in September 2013 on three felony counts of embezzlement and one count of conspiracy in connection with the alleged theft of money intended for a skateboard park in Weirton. Harris' wife, Nycole, also is named in the indictment as a co-conspirator.
Harris is accused of stealing $16,273.22 that had been raised for the Weirton Skate Park - a pet project that Harris had campaigned on in 2007. The skate park, which opened in 2009, was paid for with a state grant and donated money that went into a special city account with Harris' name on it.
The indictment alleges that Harris, who served as mayor from 2007 to 2011, wrote three checks from the skate park account in 2009 and used the money for his own benefit. Harris did not run for re-election in 2011.
After Harris left office, city officials became suspicious about funds missing from the account, prompting a two-year investigation by the West Virginia State Auditor's Office and the West Virginia State Police.
Harris and his wife have pleaded not guilty to the charges.
In his motion, Davis asked to be disqualified to avoid the appearance of impropriety. But Harris' attorney, William E. Galloway, of Weirton, said the apparent conflict taints not only Davis' prosecution of the case but also his earlier presentation to the grand jury.
"This case should not proceed on an indictment obtained by a prosecutor who had a conflict from the very beginning," Galloway said. "It just doesn't look right."
Galloway said he would support the appointment of a special prosecutor but only if the indictment is dismissed and the case started from scratch.
"The people have to be impartial who are running the show," he said.
Galloway has filed motions to dismiss the indictment and to suppress evidence. A status hearing before Sims is scheduled for Feb. 14.
Philip W. Morrison II, executive director of the WVPAI, said he has not yet received the order for the appointment of a special prosecutor. Once he does, he will submit his selection to the institute's executive council for approval.
If there are no objections from the executive council, the whole process could take about two weeks, he said.
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