I am Tom Freeland,
a lawyer in Oxford, Mississippi. The picture in the header is my law office.
I'm on Twitter as NMissC
Missing Posts: If you have a link to a post that's not here or are looking for posts from Summer of 2010, check this page.
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A couple of legal issues were raised in the preliminary hearing for Dr. Smith that bear a little examination. Smith’s lawyer argued that, first, the murder couldn’t be be felony murder because the alleged hit-man was killed in self-defense, and, second, couldn’t be felony murder because there was no underlying felony– the purported underlying felony– burglary– had not occurred because the hit man had arranged to meet Lee Abraham in the office and therefore had permission to enter the premises. The later argument was not clearly reported in initial stories about the hearing.
“Felony murder” occurs when someone dies as a part of the commission of one of a series of crimes listed in the statute. Burglary is one of the enumerated crimes. Under my understanding of felony murder doctrine, the defendant need not intend someone die in the commission of the crime.* Even accidental deaths during the commission of the crime support a felony murder charge. With those rubrics in mind, I was pretty dubious about Smith’s lawyer’s argument that a cop shooting the hit-man in self-defense barred a felony murder charge. To my surprise, one of the prosecutors stated that there was no Mississippi case on this issue, and both sides seemed to suggest to the judge at the preliminary hearing that there was a split of authority among other jurisdictions.
Beale v. State, an appeals court case from 2008, holds that self-defense was not available to a defendant who claimed he killed the victim in self-defense during the commission of a burglary. The court states: ”That court reasoned that the purpose behind the felony-murder rule was to deter even accidental killings in the commission of certain felonies by holding those guilty strictly liable for even accidental killings.” Faced with Beale’s argument that, once he entered the house and saw a man confront him with a gun, he acted in self-defense, the Court of Appeals ruled that didn’t matter under the rubric that there is strict liability for “even accidental killings…” This seems consistent with Mississippi law on felony murder generally– Griffin v. State from 1990 notes that it is not a legal defense to felony murder to claim accident.
The burglary argument has been even more definitively rejected. The defense argued that there could not be a burglary (the underlying felony that would make the killing of the hit man felony murder) because the hit man and his alleged co-felon came into the office with permission, having arranged to meet Lee Abraham. According to the story in Friday’s Greenwood Commonwealth, the prosecution argued that, because they came planning to do the hit and lied about that, they got access by fraud and it was therefore burglary.
There is a long line of cases holding that, where someone gets on the premises through fraud, there is a “constructive breaking,” meeting the “breaking the close” element of burglary. Haynes v. State (from 1999, citing Templeton v. State), holds:
[A] defendant was properly convicted of burglary of a dwelling where the defendant did not actually break into the dwelling, but rather had been invited into the house by the homeowner, but with the full intention of committing unlawful acts in the house.
There are a number of other cases making the same point.
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*For the death penalty in felony murder (or any other murder case) there is a requirement that the defendant intend lethal force be used in the commission of the crime if the defendant is not the triggerman.
Here’s a short documentary my daughter Sarah Simonson did for a Southern Studies class. The documentary is about Phil Stone (my dad’s first law partner) and William Faulkner and includes a section of my father talking about Stone and Faulkner. (I’m in there, too). I’m so glad this is on video.
Sarah gets her masters in architecture at Tulane on Saturday!
It seems that Dr. Smith made a secret video (12 minutes long!) of his meeting with a potential hit man.
The Greenwood Commonwealth story about the preliminary hearing starts off:
Dr. Arnold Smith wanted proof that Lee Abraham was dead from the man whom he allegedly hired to try to kill the Greenwood attorney.
“You’ve got a cellphone,” the physician says on a videotape played in Leflore County Court this morning during the opening of his preliminary hearing. “Take a (expletive) picture with a hole between his eyes.” …
In the video, Byrd gives Smith a cellphone that Byrd claims he stole from one of Abraham’s vehicles. Later in the conversation, Byrd brings up the subject of $20,000 — the amount that police claim Smith offered Byrd to kill Abraham.
“You have to get the $20,000 to your house, and when it’s done, I’ll let you know,” [officer] Byars testified that Byrd says on the video.
Video taping the negotiations over the hit and leaving that laying around does not strike me as the actions of a sane man.
The video was seized from the search of Dr. Smith’s office the day after the attempted hit. Folks will recall my questions about the affidavit; the Magic 8 Ball predicts an attempt at suppression.
The Greenwood Commonwealth reports
An arrest affidavit states [Dr. Albert] Smith and Cordarious Robinson conspired from about Nov. 1, 2011, to April 27, 2012, to commit murder by agreeing “to search for, solicit and hire person or persons to kill Lee Abraham.”
The record — filed in Leflore County Circuit Court this week — provides the first glimpse into Robinson’s alleged role in a murder-for-hire scheme.
Greenwood Police Chief Henry Purnell said Robinson wasn’t at Abraham’s law office during the April 28 shootout
Robinson has a preliminary hearing set for May 30th. He has been released on a $120K bond.
The biggest unknown in the case remains what role Muller, a 54-year-old Morgan City brick mason, is said to have played. He’s been charged with conspiracy to commit murder and released on $250,000 bond, but no specifics about the charges against him have been released.
His attorney, Matt Eichelberger of Jackson, has said his client is innocent and had nothing to do with the shooting.
My father’s funeral will be Tuesday, May 15th at the First Presbyterian Church in Oxford. There will be a visitation at Coleman’s Funeral Home on Highway 7 North on Monday from 4:00-6:00. My family is asking that, in lieu of flowers, folks can contribute to a memorial fund in honor of T.H. Freeland, III at the Innocence Project at Ole Miss Law School, with the donations being made through the Ole Miss Foundation. Just let them know it’s in memory of T.H. Freeland or Hal Freeland and send any contribution to the Foundation at P.O. Box 249, University, Mississippi 38677.
Here’s the obituary….
Thomas Henry Freeland, III, 82, died at home Thursday, May 10, 2012 in Oxford, MS.
Born in Brookhaven, MS, Mr. Freeland lived in Oxford for 58 years. He practiced law for more than a half century. He mentored generations of attorneys, first as a part-time law professor and later by hiring promising law students as clerks. His practice included precedent-setting cases in civil rights, commercial litigation, and libel law. In 1988, a case he argued before the U.S. Supreme Court forced Mississippi to reform century-old inequities in public school finance for the state’s northern 23 counties. He was a founding member and past president of the North Mississippi Chapter of the American Inns of Court. Mr. Freeland was a member of First Presbyterian Church in Oxford, MS. He was a life-long quail hunter, avid fly-fisherman, master of the occasional well-placed cuss word and devoted teller of courthouse yarns and family stories, some of which were true.
Survivors include his wife, Judith H. Freeland of Oxford, MS; two sons, Tom Freeland and Hale Freeland, both of Oxford, MS; one daughter, Lee Freeland Hancock of Tyler, TX; 6 grandchildren.
Here’s a weird lede from todays Greenwood Commonwealth:
The surviving alleged assassin in the shootout at Greenwood attorney Lee Abraham’s office offered a “shout out” on Facebook after being released on house arrest Wednesday.
I’m not sure how this works. One alleged co-felon is being held without bond on capital murder charge, for another they seemed to lose the warrant and affidavit and he bonded out, and the third one is dead. Now we have a fourth on house arrest and apparently semi-comfortably at home. Something odd is going on here, and I’d love to know what it is.
(I don’t have more details, in part because my free subscription to the Commonwealth lapsed. I’m thinking about subscribing).
My sister, Lee Freeland Hancock, posted this on Facebook a few hours ago
My daddy just left us. Thomas Henry Freeland III, grand old man of our family, curmudgeon, country lawyer & father of two more, daddy of four kids, lifelong porsche driver, quail hunter, mash drinker and courthouse storyteller, and, to our knowledge, the first white native Mississippi lawyer to take the right side of a civil rights case back when it could get you killed……God rest his soul. No idea on arrangements yet. Just got the call an hour or so ago from bubba Hale & brother Tom. Daddy was at home in Oxford, Miss., talking to his beloved Judy, our mom, when he had a heart attack. He was his own self, as big a character as I ever hope to meet, and we won’t see his like again.
So, back in March or so, I swapped from ATT’s standard DSL to a new service called uverse. The salesperson mislead me in important ways about what I was getting, but what I got was a big improvement, so I didn’t really complain. I got everything working and have been going along ok.
Meanwhile, AT&T is apparently migrating to new POP (incoming mail) and SMTP (outgoing mail) servers. This would require changed settings for my email client, Thunderbird, so it was kind of annoying that yesterday or the day before, AT&T migrated my account to the new servers without saying a word to me.
The error message that alerted me was that outgoing mail produced an error message that my password didn’t work and I should reenter it. I did that. Same error message. Thinking perhaps I had a password issue, I reset my password. Same error message.
I call AT&T tech support. The tech support guy tells me about the new settings and walks me through setting them. Now we get a new error message:
Login to server outbound.att.net failed
We try essentially everything imaginable, and still get the error message. He puts me on hold for a time. Comes back. Tries things. Fails. Hold again. Finally, he learns that– the new servers don’t work at all with Thunderbird. And they are having some problems with the email client that comes with Mac computers, too. And maybe even some problems with Outlook, although he is less sure about that. He tells me its a bug in Thunderbird and that he’s seing signs that att tech folk are communicating with Mozilla tech folk but that there are no solutions in sight.
I am not happy about this.
Nicholas Katzenbach, whose government service (mostly in the Justice Department) encompassed much of the major issues of the 1960s, from civil rights to Viet Nam to the Kennedy assassination. He famously encountered George Wallace at “the schoolhouse door” at the University of Alabama, and was in Oxford with the Marshalls to assure James Meredith’s admission to the University of Mississippi.
Folks who have read Robert Caro’s latest installment on Lyndon Johnson would have encountered him.
He was first headed the Office of Legal Counsel (at the request of his friend Byron White), and was later Robert Kennedy’s number two until replacing Kennedy in 1964 when Kennedy ran for Senate.
From his New York Times obituary:
Perhaps his most tense moment in government came on June 11, 1963, when he confronted George C. Wallace in stifling heat on the steps of the University of Alabama in Tuscaloosa. Mr. Wallace was the Alabama governor who had trumpeted “segregation now, segregation tomorrow, segregation forever” and vowed to block the admission of two black students “at the schoolhouse door.”
Mr. Katzenbach, flanked by a federal marshal and a United States attorney, approached Foster Auditorium, the main building on campus, around 11 a.m. Mr. Wallace was waiting behind a lectern at the top of the stairs, surrounded by a crowd of whites, some armed.
“Stop!” he called out, raising his hand like a traffic cop.
Mr. Katzenbach read a presidential proclamation ordering that the students be admitted and asked the governor to step aside peacefully. Mr. Wallace read a five-minute statement castigating “the central government” for “suppression of rights.”
Towering over Mr. Wallace, Mr. Katzenbach, a 6-foot-2-inch former hockey goalie, was dismissive. “I’m not interested in this show,” he said.
The students were registered about four hours later. …
Continue reading Katzenbach was dismissive to George Wallace, saying “I’m not interested in this show.”
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