A Tribute to Franklin D. Cleckley: A Compendium of Essential Legal Principles from His Opinions as a Justice on the West Virginia Supreme Court of Appeals: Constitutional Law
![handle is hein.journals/wvb100 and id is 1044 raw text is: WEST VIRGINIA LA W REVIEW
[t]he first inquiry under the plain error rule codified in Rule
52(a) of the West Virginia Rules of Criminal Procedure is whether
error in fact has been committed. Deviation from a rule of law
is error unless it is waived. Waiver is the intentional
relinquishment or abandonment of a known right. When there has
been such a knowing waiver, there is no error and the inquiry as to
the effect of the deviation from a rule of law need not be
determined.7
G. Cumulative Error Doctrine
Application of the cumulative error doctrine in civil litigation was
addressed in Tennant v. Marion Health Care Foundation, Inc.' The opinion held
that [t]he cumulative error doctrine may be applied in a civil case when it is
apparent that justice requires a reversal of a judgment because the presence of
several seemingly inconsequential errors has made any resulting judgment
inherently unreliable.59
XXI. CONSTITUTIONAL LAW
A. Free Speech Clause
The case of In re Hey59 provided Justice Cleckley with an opportunity to
construe the constitutional right of free speech for judicial officials:
A judge may not be disciplined consistent with the First
Amendment to the United States Constitution or with Section 7 of
Article III of the West Virginia Constitution for his remarks during
a radio interview in which he discussed his own disciplinary
proceeding, criticized a member of his investigative panel, and
stated his intention to take some reactive and lawful measure
against the panel member.91
587 Id. at Syl. Pt. 6.
588 459 S.E.2d 374 (W. Va. 1995).
589 Id. at Syl. Pt. 8.
590 452 S.E.2d 24 (W. Va. 1994).
591 Id. at Syl. Pt. 4.
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