Mullins convicted of second-degree murder in September 2022 killing of Henry Silver
• By Esteban Fernandez | Times West Virginian
https://www.timeswv.com/news/tuesday_news/mullins-convicted-of-second-degree-murder-in-september-2022-killing-of-henry-silver/article_9d001416-dcf6-11ef-98c5-37f0203889c9.html
FAIRMONT — Marion County Assistant Prosecuting Attorney Sean Murphy got a murder conviction for Austin Mullins, but maybe not the one he wanted.
Monday afternoon, a jury handed down a second-degree murder conviction against Austin Mullins for his role in the September 2022 shooting death of Henry Silver that took place at the Carolina Arbors Apartments in Carolina. Jurors also convicted Mullins for use of a firearm during felony but found him not guilty of conspiracy.
Mullins’ membership in the Pagan’s Motorcycle Club introduced an additional element for the prosecution to build its case around. However, despite the prosecution’s attempts to argue the case about the characteristics of an outlaw motorcycle club case, Mullins’ defense successfully disconnected Mullins from that portion of the state’s narrative.
The seeds of Monday’s conviction took root on Friday, after Mullins admitted to killing Henry Silver while on the witness stand. Mullins is one of six men the state accuses of murdering Silver in 2022. Mullins took the stand after the state presented the jury with three letters where Mullins admitted to killing Henry Silver to one of his co-defendants. From there, the defense went into damage control mode. Mullins would be convicted for killing Silver. The only question was, to which degree.
“It’s a tragedy, but it’s not a first-degree murder,” Kevin Tipton, Mullins’ attorney, said in closing. “You have other options, the jury instruction lists second-degree murder and manslaughter.”
The defense shifted their strategy from building reasonable doubt Mullins pulled the trigger to litigating why Mullins shot Silver. It didn’t go unnoticed by Murphy, who called the shift out during closing arguments Monday morning. However, by having Mullins testify, the defense went offensive and undermined Murphy’s goal of having Mullins convicted for first-degree murder. The standard for first-degree murder involves facts that show an individual planned another person’s death.
One courtroom observer said Mullins cried on the stand, which made an impression on the jury. A caustic cross examination from Murphy ended in several bench conferences with Marion County Circuit Court Judge Matthew Delligatti. Cursing could be heard as far as the backrow of the courtroom.
“The bailiff had to get in between both of the attorneys during that time to kind of separate them and they had to order the jury out as well,” one observer said. “But, both people apologized for that today. That’s definitely a professional move on their part.”
Mullins testified he took Silver’s life out of self defense. He told the jury he was scared for his life and was the only person in the parking lot with Silver. Mullins said the other individuals charged with Silver’s killing were upstairs with another co-defendant when the shooting happened.
Mullins claimed none of the other men charged with the crime knew Mullins was going to fire a gun and that he was the sole decision maker.
That contradicts the state’s case, which used eyewitness testimony from a 13-year-old boy to argue Mullins was not alone in the parking lot when he shot Silver. The witness said he saw two men leave the truck they arrived in and come up to the apartment he shared with his father, John Wolfe. Wolfe pointed Silver out and the men rushed back downstairs and shot Silver, according to previous testimony.
Also indicted for Silver’s murder are John Wolfe, Derek Clem, Dane Hull, Ryan Lane and Jonathan Biller. Wolfe and Clem have been convicted for the murder. A jury found Hull not guilty of the murder but still connected to the crime.
The state’s case is built on proving that the murder was a retaliation against Silver for committing adultery with the girlfriend of John Wolfe, secretary of the Central Chapter of the Pagan’s Motorcycle Club. From there, Murphy presented a grand unifying theory of the murder, arguing the intent which fueled the men’s actions was dictated by the creed laid out by the Pagan’s Motorcycle Club, itself considered a violent criminal organization by the U.S. Department of Justice.
The creed called for retribution for anyone who crossed the Pagans, Murphy said, brandishing copies of the creed found during the course of investigation to the jury.
Murphy assailed how Pagans view masculinity, calling it cowardly and weak for resorting to violence to solve problems and treating their romantic partners like property.
“What is the mark of a man,” Murphy said during his closing. “A man is someone who gives those who have less and carries burdens without recrimination. A man is not someone who uses violence and steals another man from his family and leaves them with a lifetime of grief.”
However, the complex, interconnected nature of the case presented a variety of links for Mullins’ defense to cut. Tipton drilled down into the inconsistencies in the testimony provided by several of the prosecution’s witnesses. Tipton pointed out Wolfe’s ex-girlfriend was a serial adulterer, one with several former partners who didn’t meet a violent end at the hands of the Pagans.
Key testimony from the 13 year old boy, Wolfe’s son, didn’t match up with a statement he made to the Child Advocacy Center in the initial stages of the investigation back in 2022. It was an inconsistency Tipton exploited to question how accurate the boy’s recollection was.
Instead, Tipton pointed to Silver’s own behavior that night, arguing his behavior of drunkenly pounding on Wolfe’s door to see the ex-girlfriend and refusing to leave is what led Wolfe to call his fellow club members for help and how Mullins ended up in a scuffle with Silver leading to Silver’s death. Tipton argued there was no intention to retaliate for having trespassed against the Pagans.
“Austin is not asking you to take the cuff’s off,” Tipton said. “He understands there are consequences for his actions. All I’m asking is you find him for a lesser offense.”
Both attorney’s battled around what frame of reference the jury would evaluate the case through. The jury decided against giving Murphy the first-degree murder conviction he sought, convicting Mullins of second-degree murder. The difference — the state considers second-degree murders crimes of passion, not premeditation, with the attendant consequences for the sentencing phase. The jury also cleared Mullins of the conspiracy charge.
It’s not clear what Mullins’ admission will have on the upcoming trials of Ryan Lane and Jonathan Biller. Mullins cleared Lane of any wrongdoing in the letters he wrote to Lane. The letters were entered into evidence for Mullins’ trial, perhaps opening a road to their use in the next two trials. The ruling and Mullins’ testimony may also have consequences for the three other convictions Murphy already secured.
“It’s a tough line of work,” Murphy said.