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Prosecutor Says Accused Rapist Should Have Already Been In Jail; Judge Responds To Accusations

Reported: Apr. 10, 2014 8:29 PM EDT
Updated: Apr. 10, 2014 8:55 PM EDT

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CHARLESTON, W.Va. (Leslie Rubin) -- Kanawha County prosecutors say an alleged rapist should have already been in jail for other crimes, and say an oversight by a judge is to blame.

Eyewitness News was in the courtroom as the judge addressed the situation, and pointed out more flaws in the case.

"This is the most dangerous type of person that you can possibly deal with, someone that would break into a stranger's house and rape them," says Kanawha County Prosecuting Attorney Mark Plants. He's talking about Michael Salisbury.

In March, Salisbury was arrested after deputies say he busted out a window fan in a women's home, crawled through wearing a mask, and raped her. He allegedly forced her to do meth, and videotaped the crime in a cell phone.

"He's innocent until proven guilty, but these allegations are very serious. They don't get anymore serious," Plants said.

Now, prosecutors say Salisbury should have been in jail when that happened. To understand why, you have to rewind back to 2011, when Salisbury pleaded guilty to fleeing while DUI. He was sentenced to three years on home confinement, but tested positive for drugs, prompting Judge Carrie Webster to sentence him to three to 10 years in prison. His sentence would be reconsidered if a bed became available about a drug rehabilitation facility in Beckley.

It did, and in May 2013, Salisbury, a prisoner, went to Pinehaven rehab facility. In July 2013, he was discharged after testing positive for amphetamines and meth. Prosecutors say a capias for his arrest should have been issued, but it wasn't.

"Could it have been prevented? I don't know, but I do know that a capias should have been issued and it should have been issued immediately," Plants said.

In a letter, dated July 1, 2013, addressed to Judge Webster from the facility, noted that Salisbury had been discharged. Webster said during a last minute status hearing on Thursday, she did not receive that letter.

"I've already said that the letter says July 1, there's no fax transmittal on it that says it came here. I said, on the record, I'll say it today, I can't say they didn't. I've just said in good faith, I don't recall seeing it, or we would have done what I had written in," she said.

Webster says the facility should have transported Salisbury back to jail, per her order issued before he went to the facility.

"That's what this order said, but the media, I think, really didn't appreciate and quite frankly that's why I'm doing this, is that this order said he was to be returned to the facility," she said.

Either way, Salisbury wasn't in jail. He was a free man for more than eight months before the rape accusations.

On Monday, Webster re-sentenced him on the fleeing while DUI charge, but in another mix-up, he was only sentenced to one to three years in prison, when it should have been three to 10 years. The flubbed order, prepared by the state and signed by the defense, was brought to light during a reporter's discussion with the judge about the case.

"I want to use this as a teaching moment to say that I rely on the attorneys to get things right," Webster said.

"The end result is, I've got a victim in this county that was raped," Plants said.

Salisbury has not been indicted on the rape and kidnapping charges.

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