Justice Warren McGraw:Philosophy

The allegation that West Virginia Supreme Court Justice Warren McGraw is soft on crime is news to prosecutors like Bill Sadler. 'He's not been liberal at all, actually,' said Sadler, Mercer County's elected prosecutor and head of the West Virginia Prosecuting Attorneys' Association. 'I don't think he's a danger to law enforcement.' An admitted McGraw supporter, Sadler nonetheless believes the incumbent Democrat has helped form a majority on the five-justice court that affirms criminal convictions and sentences more often than not. 'I can't say that any of their decisions have altered our cases or deterred us in our jobs,' said Sadler, who added that his group does not endorse candidates. "As far as criminal decisions, I think he's in the middle of the road."

With McGraw up for re-election, Republican challenger Brent Benjamin and other critics have waged an attack-ad campaign that labels McGraw 'soft on crime.' Benjamin and his supporters have seized on the March ruling that allowed convicted child molester Tony Dean Arbaugh Jr. to remain on probation. McGraw did not write the opinion, but helped form its majority.

'It is an example of McGraw's activist, extreme record on the court,' said Benjamin campaign spokesman Steve Cohen. But McGraw's successor as Wyoming County prosecutor, who served under him for more than a year before his boss was elected to the high court, suggested Benjamin's attack is an example of nasty politics. 'I've worked with him,' G. Todd Houck said of McGraw. "I know what his priorities are. He was tough on crime.

'This has just been politicians foaming at the mouth without facts. It's just a smear campaign. 'But a review of more than 800 criminal appeals filed with the Supreme Court since 1999, when McGraw joined the bench, suggests that his vote in Arbaugh's case is an exception rather than the rule:

The court has refused to consider nearly 84 percent of the appeals filed. Nearly 60 percent of those votes were unanimous. McGraw voted to hear 18 of the rejected appeals, less than 3 percent. Of the appeals they agreed to hear, the justices granted roughly half of them at least in part. Two-thirds of those rulings were unanimous. McGraw dissented 4 percent of the time.

Nearly 60 percent of the rulings affirming convictions and sentences were unanimous. McGraw dissented 3 percent of the time. The court has decided criminal appeals by a narrow 3-2 majority in fewer than 20 cases since 2001, when Justice Joseph Albright joined to form the current court. McGraw sided with Albright and Justice Larry Starcher in nine cases besides the Arbaugh decision. He voted with Chief Justice Elliott 'Spike' Maynard and Justice Robin Davis in six of those cases.

The Associated Press analyzed a list of cases provided by the Supreme Court clerk's office, and also drew upon the roster of opinions posted on its Web site.

'The court as a whole has largely been unsympathetic to criminal appeals,' said George Castelle, the longtime head of the state's largest public defender office, in Kanawha County. 'Most appeals of criminal convictions the court refuses to hear.'

Russ Cook agrees. The former prosecutor and defense lawyer is director of the Criminal Law Research Center for West Virginia Public Defender Services. He's tracked criminal appeals since the 1990s, and recently analyzed the court's handling of a case where the defendant has been sentenced to life in prison.

West Virginia is the only state that does not automatically allow appeals in such cases, Cook said. The justices have agreed to consider only 31 of them, out of 120 cases appealed, since January 1998. They affirmed 19, one is pending and they reversed the rest at least partly.

Cook places McGraw somewhere in between the court's two 'camps' in these cases. Maynard forms one camp, usually with Davis, to vote against appeals, Cook said. Starcher holds the opposite view, and Albright often sides with him. 'That essentially leaves Justice McGraw as a swing vote in some cases,' Cook said. "I can't pigeonhole him, if it's fair to pigeonhole anybody," Putnam Circuit Judge O.C. Spaulding said of McGraw. "He's the hardest one to read."

For years, Spaulding has presented a review of the court's criminal rulings at the annual meetings of the state's circuit judges. He believes the current court has followed the lead of the U.S. Supreme Court, and generally has been pro-prosecutor in its rulings.

But there are exceptions. Spaulding said the state justices have begun to limit when prosecutors can show evidence of prior crimes against defendants. He's also seen the court curb prosecutors' efforts to present evidence provided by co-defendants, although that trend recently was validated by a U.S. Supreme Court opinion. 'That makes it clear that our court has been heading in the right direction,' he said.

McGraw's campaign believes his critics have distorted his record. 'It is insulting to the voters of this state to limit the entire argument in this campaign to one case,' spokesman Andy Gallagher said. 'The statistics prove what we've been saying all along, and demonstrate Justice McGraw's prosecutorial background.'