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.

BlogRoll

Legal Authority for Odd Propositions (Missouri and, updated, New Jersey divisions): “The people of this state are not idiots.”

“The people of this state are not idiots.”  State, on Inf. McKittrick v. Wymore, 345 Mo. 169, 184, 132 S.W.2d 979, 988 (1939); see State v. Winne, 21 N.J. Super. 180, 225, 91 A.2d 65, 87 (Ch. Div. 1952) rev’d on other grounds, 12 N.J. 152, 96 A.2d 63 (1953) (“The people of this State are not idiots.”).

Oddly enough, both cases involve prosecutors, public corruption, and gambling, although the later New Jersey case does not cite the earlier Missouri one.  The New Jersey opinion ends with a great flourish:

The people of this State are not idiots. They do not need to be expert in the niceties of the common law to realize the vast power of the county prosecutor and the capacity his office affords for moral leadership in the field of law enforcement. They sense intuitively the respect which his office can engender in police circles, and his obligation to be zealous in this field in the pursuit of public justice. The people do not expect their ‘minister of justice’ to be a witch hunter, or to pour out the resources of his effort by investigating grammar school picnics to learn whether some one is selling ‘chances’ on a chocolate cake. But on the other hand, they realize that syndicated crime in the field of gambling spawns and nourishes official corruption. By television and other modern communications, and in the press, as well as in Grand Jury rooms, the people have finally had a look at the scoundrels who have presided at the tawdry feast of politics and crime, of official corruption and graft. They have emerged from the coma of complacency of the two post-war periods which our *226 generation has seen, and have become more sophisticated. The know that is **88 meant in underworld parlance when a community is said to be ‘wide open’ or ‘closed up tight’, and are aware that these conditions are responsive to the attitude of those charged with enforcement of the law. I am sure the public is unconvinced by breast thumping that wide-spread syndicated crime can exist notoriously and corrupt the law enforcement machinery of our communities, and the State remain powerless.
State v. Winne, 21 N.J. Super. at 225-26, 91 A.2d at 87-88.

Great Bill Withers interview about making the Rock and Roll Hall of Fame

Rolling Stone talked to Bill Withers (“Lean on Me” “Ain’t no Sunshine”) about making the Rock and Roll Hall of Fame.  The interview is hilarious, a must read even if you care about neither the hall of fame nor Withers.  A couple of highlights:

If you think about it, it’s an odd collection of people, from Elvis Presley to Miles Davis, in the Rock and Roll Hall of Fame. I just never felt that anyone owed me this. It’s something that’s nice that happened. I guess I’ll have to go buy a suit.

About people thinking he’s already died:

A very famous minister, who will remain nameless, actually called me to find out whether I was dead or not.

What did you say?

I said, “Let me check.”

About whether he wants to perform at the induction ceremony:

So, putting aside the question of whether you physically can perform at the Hall of Fame, is it something that you would want to do?

Of course I want to play. We can get into “want to’s.” I want to pose nude in Playboy magazine if they still have one. I want to walk around with my shirt off, oiled-up on a hot day and making women’s socks roll up and down. There are some people that can sing in their later years and some of them that can’t. I don’t want to be on of those old guys that sounds like a gerbil trying to give birth to a hippopotamus. So, we’ll see. Now you’ve got me all motivated. Now, I’ve gotta see if I can’t conjure it up. One of my favorite shows is the Big Bang Theory. You know that episode where Shelton is going to concentrate and try and make Leonard’s head blow up? [Laughs] I’m going to be like that.

Today’s Mississippi lawyer internet scam is the cancelled Automated Clearing House transfer…

… which involves an odd email from what appears to be a small Jackson law firm with the subject line:  “Cancelled Automated Clearing House Transaction” and a text purporting to tell me that such a transfer from my “online bank account” (no account specified) “was cancelled by the Electronic Payments Association.”  There follows information that seems to suggest that a payment of a couple of thousand dollars has been cancelled and that the reason is contained in the attached document file.

I have no idea what the attached document file might say because I did not open it.

The Jackson firm no longer exists, and the lawyer who appears on the email no longer uses that email address.  His address was obviously spoofed by whoever originated the scam.  Meanwhile, as is often the case, Snopes.com has some details about the scam.  I didn’t delve far enough into it to have any idea how they pull the money out of it.  I was impressed enough by the email to read it but insufficiently impressed to open the attachments; instead I went straight to Google to confirm my instinctive reaction.

Meanwhile:  An imagined dialogue–

passerby:  Where have you been? What’s with the blog.

me: Well, that requires a longer answer than I want to make right now.  Suffice it to say, some health issues, work, some Thanksgiving and New Orleans time with family.

passerby: Hope the health issues are ok?

me:  Working on it.  And hope to be back to regular blogging soon.

 

 

Complete returns for the Third Circuit judge race, and some notes on what changed between the general election and the run-off

Here are the returns for the Third Circuit Court run-off election yesterday.

  Byers   Luther  
  Number Percentage Number Percentage
Benton 239 29.65% 567 70.35%
Calhoun 230 16.56% 1159 83.44%
Chickasaw 760 39.62% 1158 60.38%
Lafayette 615 18.72% 2671 81.28%
Marshall 1555 49.02% 1617 50.98%
Tippah 202 7.59% 2460 92.41%
Union 116 4.69% 2358 95.31%
Total 3717 23.66% 11990 76.34%

It was obviously a resounding victory for Kelly Luther.  One way to look at such an election is to ask:  What percentage of the general election vote did the candidates get in the run-off?  Did they get their voters out the second time?

The answer suggests that the voters in the run-off went with very decided opinions about the election– Kelly Luther didn’t just hold his vote, he improved it in several counties.  In Lafayette County, the largest in the district, he got over 96% of the voters he had in the general election, which had a top-of-the-ticket election many more people knew about and possibly cared about.  Byers only brought out about 18% of her general election voters in Lafayette.  In Tippah County, his home county, he brought out over 227% of his general election vote, more than doubling, while Byers brought out only about 19%.  In Marshall County, Byers’s home county, Luther brought out over 183% and Byers only 44%.

In sum, Luther held 94% of his vote and Byers only just over 26%.

  Byers Luther
Benton 30.88% 112.06%
Calhoun 18.21% 77.58%
Chickasaw 38.27% 77.56%
Lafayette 15.98% 96.39%
Marshall 43.59% 183.54%
Tippah 18.67% 227.36%
Union 7.41% 77.06%
Total 26.39% 93.65%

 

Permalink

I have total returns for all counties (from the Daily Journal), and county returns for Chickasaw County (from the Chickasaw Daily Journal) and Lafayette County (obtained by me from the Circuit Clerk).  I do not have returns for Marshall, although I have been reliably informed that Kelly Luther carried that county, Benton, Calhoun, Tippah, and Union Counties.

County Byers Luther
Number Percentage Number Percentage
Chickasaw 760 39.62% 1158 60.38%
Lafayette 615 18.70% 2674 81.30%
Other 2,342 22.30% 8,158 77.70%
Total 3,717 23.66% 11,990 76.34%

Today: Vote in the Third Circuit Court judicial runoff in North Mississippi

Update: VOTE TODAY, TUESDAY NOVEMBER 25th!

Folks in the following counties have an important judicial election tomorrow:  Lafayette, Benton, Calhoun, Chickasaw, Marshall, Tippah, Union.  The candidates on the ballot are Kelly Luther and Shirley Byers.  I have previously posted about Shirley Byers’s prior experience as a judge.

I am supporting Kelly Luther.  He has 19 years experience as a prosecutor, all of it within this Third Circuit Court district, primarily in Tippah County, where he lives.  I have spoken to a full range of members of the legal profession; he has the respect of everyone who has directly dealt with him that I’ve spoken to.  Defense lawyer view him as a skilled but quite fair-minded prosecutor.  “Fair-minded” is critical here; there is always a danger in elevating a prosecutor to the bench that they retain the mind-set of an aggressive prosecutor.  Talking to the defense bar about Kelly Luther make me not much worry about that.  He worked before that in an excellent firm in Tupelo, Mitchell, Vogue, Beasley and Corban.

My reasons for opposing Shirley Byers are best explained by reading this post.

You vote at your usual polling place at the usual time.  With the exception of folks who are in the Oxford Separate School District but outside the city limits, I believe this will be the only thing on the ballot.

I have not been posting lately because personal life and work demands have occupied my time very close to completely.  More later during the week, probably leaning toward food-related posts.

Congress gave the President the authority to “Establish[ ] national immigration enforcement policies and priorities” and that’s what Obama did

The quote in the title is the full text of 6 U.S.C. § 202(5).

Executive discretion– the most familiar example being prosecutorial discretion– is a bedrock concept of our law.  The executive cannot pursue every case, and so they have the authority, often explicitly granted by statute, to select what cases to pursue.  It is not just legal but a good thing that this discretion can be exercised case-by-case (deciding whether individual cases warrant prosecution, for instance) or through policy (deciding which cases most warrant prosecution resources and which ones, as a matter of policy, do not).  Immigration law is an area where Congress has explicitly granted the President the authority to make these sorts of choices, including at the level of having policies about which cases to pursue deportation and which cases to not pursue deportation.  Congress has explicitly provided principles for that exercise that provides that the policies should favor deportation of criminals, national security threats, and the like, over people who are merely working here.

And that has what the President has done.  I have three essential readings on the subject.  One is from Eric Posner, a law professor at the University of Chicago who served as a lawyer in the most recent Bush administration.  The other is from Walter Dellinger, who served as the director of the Office of Legal Counsel from 1993-1996.  Both say it is crystal clear that this is legal.  The third is the actual opinion by Justice Department lawyers about what sort of discretionary policies would be legal and, in one instance, what would not.

Congress could legislate away or limit the discretion it has explicitly granted, but won’t because it would still present a problem– Congress is only funding resources to deport about 400,000 a year, and so somehow and someway, discretion is going to be exercised in selecting who those 400,000 might be.  Surely allocation of resources by a plan would be better than essentially saying “Pick up the first 400,000 undocumented folks you get your hands upon.”

There are demagogues out there screaming for impeachment, which is ludicrous given the clear law here.  The more lunatic even scream for criminal prosecution and jail– one tweet seemed to think that the “maximum punishment” could proceed after impeachment, evincing a failure to understand that part of the constitution, too (the term for what happens after impeachment is “removal”– or not– and not punishment).  This is a demographic that seems particularly impervious to evidence-based analysis, but what can we do?

Remember that lawsuit by the Sons of Confederate Veterans?

That memorial lawsuit by the Sons of Confederate Veterans seems to have gone nowhere.  They got issued a summons for a Rule 81 hearing (what were they seeking, a divorce?) for a hearing that was never actually scheduled, and a lawyer appeared for the University, and then…  nothing.  Not even a return on the summons.  The last peep from the would-be heirs to the University Grays and their demand for emergency relief was two months ago tomorrow.

Screen Shot 2014-11-17 at 3.45.43 PM

 

After all the grief my posts got from the NeoConfederates, certain, as always, of the righteousness of their cause regardless of evidence from the exterior world, it would be kind of funny if this one died aborning.

We All Must Look The Same To Them

Anderson is going to love this one.

This was in the Chittenango, New York may have been in a newspaper’s sports section this morning.  From Shannon Lovejoy on Facebook.

Update:  I wondered about the cut off masthead, which should have been a big read flag.  When someone goof on Facebook tried to foist this off as the New York Times and I knew it was not, I checked.  Chittenango is a “village” in the Syracuse area most famous as the birthplace of L. Frank Baum.  Does not seem to have its own newspaper.  No idea where it is from.  It doesn’t look faked to me– looks like a real newspaper page– but what do I know.  Anyone with any clues where it originated?  I’m still thinking it is real.

Update 2: I am told but cannot confirm that this was in the Syracuse Post-Standard which is a real newspaper.

Third Circuit Judicial Race, Part 1: Judge Byers, the First Amendment, and Due Process of Law

I.

There’s a runoff in the Circuit Court race in the Third Circuit Court district.  That encompasses Tippah (Ripley), Benton (Ashland), Marshall (Holly Springs), Lafayette (Oxford), Union (New Albany), Calhoun (Pittsboro) and Chickasaw (Houston / Okolona) Counties.

The run-off is between Shirley Byers and Kelly Luther.  Luther’s credentials are ones that would be expected for a circuit judge candidate:  He’s been practicing since 1989, worked at the Tupelo law firm of Mitchell, Vogue, Beasley, and Corban until 1991, and thereafter was a city judge in New Albany and then county prosecutor.  For the last 19 years he has been an assistant district attorney, with cases primarily in Tippah County.  While I don’t know him personally, lawyers I respect do, and, based in part on what I’ve learned, I am supporting him for election as circuit judge.

While I am  supporting Kelly Luther as a qualified and excellent candidate for circuit judge, I think it is important that people deciding how to vote in the run-off understand, also, reasons not to vote for his opponent, Shirley Byers.  To put it in simplest terms, she served (and was voted out of office) as a circuit judge in Greenville, where the Mississippi Supreme Court found her misconduct so serious that I cannot imagine how any reasonable lawyer would think that she had the judicial temperament to be a judge.  She used her prior position as a judge to illegally jail a reporter and another person for contempt of court.  Before jailing the reporter, she entered an order that prohibited the reporter (or anyone else) from accurately reporting what occurred in her courtroom.  That order is what is called a “prior restraint on speech,” and violated the core principles of the First Amendment guaranty of Free Speech.  Law students learn about this (I sincerely hope) in the first year of law school.  When the reporter did not respect this illegal order, Judge Byers had the reporter jailed for contempt of court.

Presumably in response to this, and to other conduct that the Mississippi Supreme Court later found was improper, the voters put her out of office after one term.  The Mississippi Supreme Court majority opinion reprimanding her for her conduct strongly implies that, if she had not been voted out, she would have been removed from office, which would have led to her permanent ban from the bench (and prevented her from running in the election that is occurring now).

II.

On her website describing her qualifications, Shirley Byers emphasizes that she is the only candidate with prior judicial experience.  There are a couple of aspects to that assertion that seem… slightly odd.  She states that she served as a judge in Greenville area from 1995-1999– one term.  She emphasizes her deep roots in Marshall County, which make it puzzling why she ran elsewhere, first.  One term as a circuit judge?  And now she is running in a different district?

A quick Google search produces the beginning of an explanation.  The first hit on the search “Shirley Byers judge” turns up a couple of cases, one that got nationwide attention because it involved the jailing of a reporter in violation of the First Amendment and in complete disregard of the Due Process requirements for such a jailing.

That case is Jeffries v. State, 724 So. 2d 897 (Miss. 1998).

Cynthia Jefferies was a reporter at the Delta Democrat Times, and attended an open court manslaughter sentencing.  During the sentencing, the prosecutor brought up parts of the defendant’s juvenile record in an attempt to persuade the court to impose the maximum sentence.  After statements of counsel, Judge Byers asked Jefferies to approach the bench and ordered her to remove references to the juvenile record from her notes and that if they were published in the paper, she would bring back to reporter and find her in contempt.

The next day, the paper published the story, and noted that the defendant’s record included “manufacturing of marijuana, grand larceny, auto burglary, possession of alcohol and others…”  The article also discussed the trial order and its impact on Jefferies’s First Amendment rights.

About a week later, Judge Byers had a warrant for arrest served on Jefferies.  Jefferies arrived at court with her lawyer, and was immediately ordered to jail.   While it is not mentioned in the Jefferies case, a later discipline case against Judge Byers states that Jefferies was refused an appeal bond.

The opinion by Judge Mills for a unanimous court contains a startling number of concessions by the Attorney General in defending Judge Byers’s action in response to Jefferies appeal:
The state concedes that Jeffries’s actions cannot form the basis of the direct contempt charge of which she was convicted. We agree. …
The state also concedes that Jeffries was not afforded the procedural safeguards required for a charge of constructive contempt. Constructive contempt requires a specific charge, notice and a hearing. …
The state also acknowledges that the order of the circuit court is a prior restraint on speech and as such is presumptively invalid.  … . A three-part determination must be applied to overcome the presumption. Id. at 562, 96 S.Ct. 2791. The trial judge made no determinations in an attempt to overcome this presumption.
Finally, the state concedes that such an order must not necessarily be contested with an attack on the order itself but may be contested by disobedience.
In other words, Judge Byers used a charge that she could not have used, failed to follow the due process requirements for such a charge, and did so to enforce an order that was illegal because it was an improper prior restraint on free speech.
I’m somewhat concerned that this relatively clinical description understates how bad this conduct was, and how many fundamental notions of what the law is and how it should be applied were violated.  This was a public hearing, and all the reporter did was report upon it.  A society where that is not protected is not a free society.
The opinion closes by describing Jefferies’ First Amendment rights:
Jeffries chose to publish in violation of the order. In support of Jeffries, an amici curiae brief has been filed representing the position of the following groups: The Reporters Committee for Freedom of the Press, Society of Professional Journalists, American Society of Newspaper Editors, Mississippi Press Association, and Mississippi Association of Broadcasters, Inc. This brief illuminates what the state has already conceded. …
Obedience to the lower court order would have damaged Jeffries’s right to freedom of speech. The restraint might have been effective in keeping Hollingsworth’s juvenile record private; however, members of the family of the victim were also in the audience. There was no duty on their part to keep the matter private and no guarantees have been made that the family has kept the record private. Less extreme measures were certainly available. For instance, the trial judge might have simply reviewed the juvenile record for herself or she may have had counsel brief it for her in writing instead of discussing it in open court. Once she made the matter public, those in attendance, including the press, had a right to further disseminate the information. Therefore, the prior restraint was an invalid interference with Jeffries’s first amendment rights.
The United States Supreme Court has held that a case could conceivably arise where a prior restraint might be valid. Near v. Minnesota, 283 U.S. 697, 716, 51 S.Ct. 625, 75 L.Ed. 1357 (1931). However, as the amicus brief notes, when information has been obtained legally from a public proceeding or document, the United States Supreme Court and appellate courts around the country have consistently rejected any restraint on its publication. This is true even when statutes prohibit dissemination of the same information when not publicly available. See The Florida Star v. B.J.F., 491 U.S. 524, 109 S.Ct. 2603, 105 L.Ed.2d 443 (1989)(allowing publication of name of victim of sexual offense); Oklahoma Publ’g Co. v. District Court, 430 U.S. 308, 97 S.Ct. 1045, 51 L.Ed.2d 355 (1977)(allowing publication of the lawfully obtained name and picture of a juvenile offender); State v. Coe, 101 Wash.2d 364, 679 P.2d 353, 363 (Wash.1984)(holding prior restraint on publication of tapes of open court proceedings is forbidden by the Washington Constitution); United States v. Salerno, 828 F.2d 958 (2nd Cir.1987)(refusing to create an exception to the right to inspect and copy judicial records for video depositions); Columbia Broadcasting Sys., Inc. v. United States Dist. Court, 729 F.2d 1174 (9th Cir.1984)(holding order restraining CBS from broadcasting “sting” tapes violated first amendment). The Washington Supreme Court stated:

A trial is a public event. What transpires in the court room is public property…. Those who see and hear what transpired can report it with impunity. There is no special perquisite of the judiciary which enables it, as distinguished from other institutions of democratic government, to suppress, edit, or censor events which transpire in proceedings before it.

Coe, 679 P.2d at 363 (quoting Craig v. Harney, 331 U.S. 367, 374, 67 S.Ct. 1249, 91 L.Ed. 1546 (1947)).
The Mississippi Constitution of 1890 provides safeguards similar to those provided by the federal constitution:

The freedom of speech and of the press shall be held sacred; and in all prosecutions for libel the truth may be given in evidence, and the jury shall determine the law and the facts under the direction of the court; and if it shall appear to the jury that the matter charged as libelous is true, and was published with good motives and for justifiable ends, the party shall be acquitted.

Miss Const. art. 3, § 13. In Mississippi courts as well as in federal courts, the protection of free speech is sacred and not to be dismissed lightly by trial judges. The lower court in this case failed to weigh the prior restraint factors set out by the United States Supreme Court.
Without this determination, we are left with a presumption of invalidity. The basis of the publication in question was an open court hearing and the information was lawfully obtained. Less extreme measures could have been implemented by the trial judge. Therefore, the conviction of criminal contempt is reversed and vacated and Ms. Jeffries is discharged.