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Published: Sunday, September 06, 2009
Page: 1B

Five years after he became a pawn in state Supreme Court politics, Tony Dean Arbaugh Jr. is back in prison for violating probation and drug laws.

He became a statewide center of attention in 2004, when Massey Energy CEO Don Blankenship spent more than $3 million to help elect Charleston lawyer Brent Benjamin to the West Virginia Supreme Court.

Through the group And For The Sake of The Kids, Blankenship bought television ads attacking incumbent Justice Warren McGraw for voting to release Arbaugh from confinement.

At the time, Massey Energy was getting ready to appeal a $50 million Boone County jury verdict against the company to the state's highest court. It was widely believed McGraw would have voted against Massey.

Arbaugh, then 23, had already spent seven years in detention centers and treatment programs.

The attack ads began running shortly after Arbaugh was released on probation.

"Letting a child rapist go free to work in schools, that's radical Supreme Court Justice Warren McGraw," the ads said of Arbaugh.

"Now, every time I walk outside, everyone's looking and taking their kids in. It messes with me," Arbaugh said during a September 2004 interview with The Charleston Gazette.

"Last night, a cop watched me for 30 minutes while I was playing basketball. It makes me not want to go out," he said.

Lary Garrett, a Moorefield lawyer who represented Arbaugh, said the man's problems re-emerged after the campaign ads. He spoke with the Sunday Gazette-Mail last week.

Arbaugh's counselors saw promise in him when he was released in the spring of 2004.

"Then those ads started running," Garrett said. "Kids like that give up pretty quick.

Within a year, Arbaugh was back in jail for violating his probation and drug charges, Garrett said.

"Tony seemed to be doing OK when he got out. But all of a sudden, within a few weeks, his picture was on TV.

"Anywhere he went, everyone was looking at him. When he went to shoot baskets, everyone was looking at him. He was Public Enemy No. 1.

"The way Blankenship and Benjamin used Arbaugh to their advantage in 2004 is just outrageous. It is the worst of what electoral politics is all about," Garrett said.

Money was a curse

Arbaugh was repeatedly abused sexually, beginning when he was seven, by two adult family members and Ferlin Jay Heavener, a fourth-grade teacher at Circleville School.

"It is sad," Garrett said. "Kids like Tony never had a chance in his own family. His school system threw him to the wolves."

When he was 14, Arbaugh began abusing a younger half-brother.

"When he was 14, Tony was transferred to adult jurisdiction. He had a bad upbringing and bad luck," Garrett said.

Arbaugh began several years in detention centers and treatment programs.

Arbaugh was sentenced to 15 to 35 years on Sept. 4, 1997. After spending time in special treatment centers, Arbaugh was released on five years' probation in August 2000 and got a job in a local chicken processing plant.

After getting caught drinking and smoking marijuana, Arbaugh was sent back in to prison again, until the Supreme Court voted, 3-2, to release him in February 2004.

"Considering Mr. Arbaugh's tender age and extreme victimization," the Supreme Court decision stated, "we cannot, we will not, surrender any opportunity to salvage his life and to turn him into a productive member of society."

Critics said McGraw approved of a plan to allow Arbaugh to work as a janitor in a Catholic High School. McGraw said the ads were false, and Arbaugh never worked at the school.

Meanwhile, Garrett and Jeffrey R. Roth, a Petersburg lawyer, had sued the Pendleton County School Board for ignoring the repeated sexual assaults against Arbaugh and other boys by Heavener.

Shortly after the attack ads began running on television, Arbaugh received a $500,000 settlement from the Pendleton County School system.

But the money was a curse for Arbaugh, Garrett said.

"We tried to get Tony to take a structured settlement, to put his money in a safe account until he bought a house or used it for other good purposes.

"But Tony spent all his money in about four months, mostly buying new vehicles for his family and relatives, many of whom wrecked those vehicles.

"He began snorting cocaine and methamphetamine in immense amounts. At one point, Tony and his friends were smoking $1,000 worth of meth a day," Garrett said.

"Tony also went up to a WVU-Rutgers football game with his friends, then went to Atlantic City and blew a ton of money gambling."

Today, Heavener is serving time at the same facility as Arbaugh - Mt. Olive Correctional Complex. In 1999, Heavener pleaded guilty to 20 counts of sexual assault and five counts of delivering drugs.

McGraw lost the 2004 Supreme Court election to Benjamin and is now a Wyoming County circuit judge.

Benjamin is chief justice of West Virginia Supreme Court.

Reach Paul J. Nyden at or 304-348-5164.

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