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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“Maggi and I wanted to begin by thanking you and Marsha for a lovely and special lunch at the Mansion last Tuesday,” began a letter to the governor by the family friend of Doug Hindman, one pardon applicant. “It was very interesting to see the historical quilt upstairs.”
“Please tell Uncle Haley that one of my few talents is my ability to judge people,” read the letter on their behalf, sent to one of Mr. Barbour’s nephews at his lobbying firm in Jackson.
Quotes from a couple of pardon applications highlighted in the New York Times look inside Gov. Barbour’s pardons. Kingfish has written about the HIndman pardon.
The New York Times has a very good and well-reported story about the Barbour pardons. In addition to the two noted, it describes a case out of South Panola pardoning a South Panola coach whow as charged with molesting a fourteen year old. The papers on the application included a letter from the dean of the University of Mississippi School of Education disbelieving the charge and a letter from a past-president of the Farm Bureau Federation. The parole board had unanimously voted against this pardon, but it was granted any way. A close look at some of the clemency applications of nearly 200 of the other felons who were pardoned reveal that a significant share contained written appeals from members of prominent Mississippi families, major Republican donors or others from the higher social strata of Mississippi life.
There’s also this:
Mr. Barbour declined to comment on the pardons, but a spokeswoman said that every application had been treated alike. “If you were poor or rich, you were told to go through the parole board process,” said the spokeswoman, Laura Hipp.
Well, yes, there’s a process. Did it turn out the same for everyone?
Finally, there’s a nod to this blog for writing about the Bostick pardon. I greatly appreciate the acknowledgment.
Well, he didn’t like him when he was in Congress.
When Gingrich was speaker of the House, Bob Dole was the Senate majority leader. And so Dole spent a lot of time listening to the speaker’s proposals. “Gingrich’s staff has these five file cabinets, four big ones and this little tiny one,” he told The New York Times. “Number one is ‘Newt’s ideas.’ Number two, ‘Newt’s ideas.’ Number three, number four, ‘Newt’s ideas.’ The little one is ‘Newt’s Good Ideas.’”
…and, as of yesterday, he still feels about the same way. He released a statement explaining why he thought Gingrich would be a disaster for the Republican party, which included this gem:
Newt would show up at the campaign headquarters with an empty bucket in his hand — that was a symbol of some sort for him — and I never did know what he was doing or why he was doing it, and I’m not certain he knew either.
That Ezra Klein post in the first link has some of the ideas:
In 1996, he wrote legislation prescribing the death penalty for anyone who brings more than two ounces of marijuana into the country. In 1984, he suggested that “a mirror system in space could provide the light equivalent of many full moons so that there would be no need for nighttime lighting of the highways.” In 2009, he proposed blasting North Korea’s nuclear arsenal with a laser.*
Somewhere on the web, someone pointed out that the presidency is more about being able to choose between good ideas and less good ones, rather than about dreaming up a constant flow of them. Elsewhere, there’s the Newt or Super Villain quiz.
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*The actual story about the bucket is at the link.
Another Justice Court judge came before the Mississippi Supreme Court for misconduct. This one had been previosuly sanctioned, and so this time out, gets a thirty day suspension for not following the law in a way that wasn’t just mistaken, ex parte contact with parties, and generally interfering with cases either not before him or otherwise not really in his charge.
That is not particularly newsworthy.
The interesting part is a dissent by Justice Kitchens (in which none of the other 7 sitting on the case join). He concludes:
Duty to Report Attorney Misconduct
¶53. Finally, although I agree that Counts Two and Four provide a sufficient factual basis for sanctions against Judge Thompson, our ruling should not be limited to the judge. In both situations, members of the Mississippi Bar played active roles in the misconduct. Our Rules of Professional Conduct tell us that, “[i]t is professional misconduct for a lawyer to . . . knowingly assist a judge or judicial officer in conduct that is a violation of applicable rules of judicial conduct or other law.” Miss. R. of Prof’l Conduct 8.4 (f). In addition,
A lawyer having knowledge that another lawyer has committed a violation of the Rules of Professional Conduct that raises a substantial question as to that lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects, shall inform the appropriate professional authority.
Miss. R. of Prof’l Conduct 8.3(a). In the present case, Counts Two and Four involved lawyers’ asking a nonlawyer judge to engage in conduct that this Court has adjudicated sanctionable. Thus, as a matter of law, these lawyers seem to have violated Rule 8.4 (f), and as members of the Bar, we justices are duty-bound to report this apparent professional misconduct. Miss. R. of Prof’l Conduct 8.3. ¶54. Moreover, at least five members of the Mississippi Commission on Judicial Performance also are lawyers, and, it follows that they too are required to report lawyers’ misconduct. Miss. Const. art. 6, § 177A. While a report may have occurred, we are not informed whether the Bar has been notified of the Commission’s findings in the present case. In future judicial performance matters, where it is apparent that attorneys have actively participated in the alleged misconduct, the Commission should take steps to “inform the appropriate professional authority,” and also should notify this Court whether such report has been made.
This is a drum I have been beating for some time: Why doesn’t the Supreme Court feel compelled to do something when there is misconduct evident in the record before them? This point was truly driven home in a couple of the cases that came out of the Judge DeLaughter – Ed Peters relationship, particularly that land case where Peters went to DeLaughter’s home to get an ex parte order stopping the enforcement of a judgment (long-ago readers of www.folo.us will remember it. I’ll pull up links if there is sufficient interest).
We know at least one of nine down there are thinking about this issue.
For the curious, here is the facts in Count One:
On or about December 1, 2008, a local attorney, Frank B. Liebling, went to the Lee County Justice Court office to file a complaint against a client who ha[d] stopped payment on a check issued to Liebling for attorney fees.
Liebling did not file the complaint and no action was pending before the court. Instead, Liebling took the proposed complaint and engaged in an ex parte conversation with Respondent. As a result of the meeting, Respondent signed an order nullifying the stop order on the check in question and ordered the bank to cash the check immediately.
The bank officers, being suspicious of the order, contacted the attorneys for the bank and the next day after a conference with the bank attorneys and Liebling, Respondent rescinded the nullification order due to improper process.
Here are the facts in Count Two:
Robert Gary Orozen, Jr. was arrested and charged with the felonies of forgery, possession of a counterfeit check and possession of false identification in October, 2008 in State of Mississippi vs. Robert Gary Orozen, Jr., Docket 571, Pages 253-254.
On or about October 28, 2008, Lee County Justice Court Judge Sadie Holland presided at the initial appearance and set bond at $250,000.00. On January 29, 2009, counsel for the defendant filed a Motion to Reduce Bond and for Preliminary Hearing. On April 7, 2009, Judge Holland denied the defendant’s request for bond reduction and a preliminary hearing was scheduled for May 27, 2009. That same date, counsel for defendant approached Respondent regarding the request for bond reduction.
The next day, April 8, 2009, Respondent reduced the defendant’s bond to $5,000.00 and he was released and transferred to the custody of another law enforcement agency.
Kingfish earlier posted a couple of times about a Hinds County pardon case involving Douglas Hindman, who was caught in a TV-show sponsored sting involving investigators posing as early-teen girls and setting up meetings with guys seeking sex. Now he’s pushing that along, by looking at the other cases that arose out of the same sting. The upshot: If a defendant was a Hinds County case, the sting didn’t have too much sting, with results like Hindman’s pardon, cyberstalking pleas set up for later expungement (by Judge Green, far from the only “its a small world” moment in Kingfish’s posts), and the like. But the one case on the coast produced a 25 year sentence.
Last week, Bill Minor wrote in the Clarion Ledger, telling the whole story of Ross Barnett saying, “If you can’t trust a trusty, who can you trust.” Minor was there, and he has all the details. I’d heard the short version for years, spun slightly differently– that a Parchman trusty was sent into Arkansas one weekend on an unspecified errand with $10K in cash, and, surprise surprise, just disappeared, and, pressed to explain, Gov. Barnett responded with the famous line.
There’s more to the story than that.
While Barnett was governor, a crazy system of prison leaves started being used. The Superintendent of Parchman would grant a prisoner a three day leave without any clearance from the parole board or local officials. Then, a lawyer or other “friend” of Barnett’s would get a seven day extension of the leave, and those extensions would be repeated indefinitely. Prisoners were just disappearing after a point.
One trusty was a famous killer, Cowboy Dale Morris (who had a longer story interesting in itself). Here’s how he disappeared:
He convinced Superintendent Jones that if he was permitted to go with two guards and a double horse trailer over to Arkansas, he could pick up a pair of Tennessee walking horses and make Parchman a major horse breeding farm.
So Morris and the two guards set to Arkansas with the empty horse trailer.
Sure enough, on reaching Hot Springs, the cowboy wangles the pair of walking horses. When they are ready to return to the Mississippi prison farm, Morris tells the guards he’d like to take care of some business while in Arkansas. See some girlfriend, no doubt.
“Why don’t you all head on back to Parchman and by the time you get back, I’ll meet you there?” Morris tells the prison guards.
After Morris had been a no-show for three weeks, Gov. Barnett decides he’s going to have to explain all this to reporters. He starts showing them documents he said vouched for Morris, and then:
He starts shuffling through them and stops when he finds one particular document.
“Why, he was even a trusty,” Barnett proudly crows. Then turning toward me, the governor in his typical hoarse drawl, declares: “If you can’t trust a trusty, who can you trust?”
The leded begins “pardon files are missing” but reading the article carefully, I think what it says is “The state responded to a public records request for pardon files by saying there aren’t any.” Here’s Holbrook Mohr’s story:
Pardon files are missing or don’t exist for four convicted killers and another man who worked as trusties at the Governor’s Mansion and were pardoned by former Gov. Haley Barbour.
The Associated Press made public records requests for such documents…
I’ve been convinced since the beginning that a careful look at these pardons– where they originated, who was seeking them, what political connections might have been involved– would produce some interesting stories, and I have the impression there are a number of folks working on it.
Mississippi Supreme Court justice Taylor McElroy was a circuit judge and before that mayor of Oxford. His knowledge of politics (particularly local varieties) was long and deep. About newspaper coverage of court proceedings, he commented, “They always send a sports reporter to cover court.”
I’m not sure of the usual beat of R.L. Nave of the Jackson Free Press, but it’s certainly not legal matters. It’s hard to count the things he gets wrong in his or her article about the hearing before Judge Green. He confuses motions to disqualify Attorney General Hood and transfer the case back to the original judge as “repeatedly tr[ying] to have the case thrown out.” He states “attorneys did not file the motions properly” when it was clear on the record that they filed the motions with the clerk of the court (which is how one files motions properly) but that Judge Green was unhappy because copies were sent to her court administrator by email (not required to “properly file” with the court but certainly a way to send courtesy copies to a judge) when her court administrator was having a day off.
The article also buys in entirely to Judge Green’s hostility to the efforts of the lawyers for pardonees to do their jobs, and to her hostility to lawyers who had to respond quickly to a no-notice restraining order just days or possibly hours after their clients had been served. It raises the ante on that hostility with smarmy characterization of the lawyers appearing in support of the pardons, starting with the headline– “Pardongate’s Fancy Lawyer Tricks.” The remark that “one pradonee, Ozment, did not appear at the hearing” is particularly misleading because the assistant attorney general speaking at the hearing made absolutely clear that Ozment had not been served with process and therefore had no notice of the hearing.
Update:
The author of the Jackson Free Press article has responded to my post in comments to his article (I can’t see how to directly link to his comment, but if you click on the link above, you can read it). Donna Ladd of the JFP has responded in comments, and there is some dialogue with me there.
Essentially, his response is that Judge Green said things that support what he wrote: ”First, the article does not say that attorneys filed their motions improperly, as stated on NMC. The article points out that Judge Green was agitated that the motions were not filed properly.”
I’m having a more than small problem parsing that one. The article says: ”Hinds County Circuit Court Judge Tomie Green’s visible agitation that attorneys did not file the motions properly–one lawyer emailed documents to Green’s court administrator…” Anyone at the hearing knew that Tom Fortner stated he had filed them with the clerk and sent them to the court administrator. So I’m left with a misleading account (I’m assuming the author could have confirmed that the motions were filed with the clerk, and that is how it is done…) that simply accepts what one participant (Judge Green) said unquestioningly in spite of substantial evidence (others saying something different) to the contrary. I suppose I had the advantage of knowing how things actually worked.
Finally, there’s this in the author’s comment: ”As for the smarmy headline, I throw myself on the mercy of the court.” I’m tripping over the word smarmy. First, this was my least favorite article. I get to say that on my blog. Second, I think there’s a little bit of projection here, given the headline of the JFP story: ”Pardongate’s Fancy Lawyer Tricks”.
As a lawyer, I’ve got a problem watching lawyers doing their job and dealing with a difficult and unreasonable judge characterized with the words “fancy” and “tricks.” A pretty smarmy sliming, as far as I can see.
If a party’s lawyer cannot understand the testimony of the party’s own expert, the testimony should be withheld from the jury. Evidence unintelligible to the trier or triers of fact has no place in a trial.
Thus says* Judge Posner in ATA vs. Federal Express, in a December opinion.
The plaintiffs lawyer put on a forensic accountant who used a regression analysis to predict what the plaintiff’s profit would have been had it continued in a contract with Fed Ex. The expert used a linear regression premised on the notion that profit was dependent on costs; Posner’s opinion dismantles that notion and essentially every other part of the experts misuse of the analysis. He even recommends some basic texts (one aimed at federal judges) for those wishing to understand regressions.
He also makes clear that neither the trial judge nor the lawyers from either side evidenced any understanding of expert testimony, thus resulting in the concluding sentence quoted above. The lawyers were faced with a panel containing not one but two law and economics experts (Easterbrook was also there), and apparently entirely unable to impart any understanding of what the expert’s testimony was about.
I would say that the rule stated in the quote stands a good chance of keeping regression analysis out of many courtrooms entirely.
One (possibly unintentionally?) funny part of the opinion seems to contradict the basic premise:
[A] linear regression is an equation for the straight line that provides the best fit for the data being analyzed. The “best fit” is the line that minimizes the sum of the squares of the vertical distance between each data point and the line. (Why the squares rather than the simple distances is difficult to explain, and the jury can be asked to take it on faith.)
But, but… is that making it intelligible?
h/t Technology Law Notes via Olson.
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*”Says” rather than “holds” because the opinion’s analysis of the expert testimony may be entirely dicta. The court reverses the case because the plaintiff did not prove a contract and then goes on to dismantle the expert’s testimony after noting that this issue will come up again. Just in passing, the part of the opinion about when agreements with major missing terms can be contracts and when they cannot is interesting, too.
I am sad to report the death of W. Allen Pepper, Jr., who was a United States District Judge here in Mississippi beginning in 1999. Prior to that, he had practiced for thirty years in Cleveland (during which time he served as a public defender many years). He was graduated from Ole Miss law school in 1968.
He was a kind man and a gentleman and will be missed.
The Clarion Ledger story does not add much. It does note that the five pardonees still being held by MDOC have filed separate proceedings seeking release. Even though they are not in court in Jackson– their names were added yesterday during the hearing and so at that point they had no formal notice of the proceedings– Judge Green essentially ordered them not to go forward on their separate habeas proceedings, strongly implying it would be contempt to do so.
From Rule 65: ”a restraining order… is binding only upon the parties to the action….” Well, I guess they are about to be parties…
She also brought them within the TRO on a mere showing by the attorney general that there were pardons– there was no proof about advertising or the lack of it for those five. Watch the hearing. The showing is little more than “here’s some names we want to add.”
Apparently requiring proof of “likelihood of success” has not entered the traditions for preliminary injunction practice in Hinds County circuit.
WLBT has quotes from a couple of the lawyers after the hearing. Fortner declined to comment. Here’s Ed Blackmon, who WLBT says is representing Aaron Brown (a Marshall County case) and Azikiwe Kambule (the South African), both of whom are still being held in spite of their pardons. I think he’s referring to Kambule here:
“He has a legitimate pardon from the state. Pardons have been given over the last century in Mississippi, and his pardon we believe is solid,” Blackmon said.
A couple of other lawyers present were representing pardonees who have long since been discharged; so far, Hood has not suggested he is going after them:
“My client’s name is Buster Caldwell,” [convicted of rape and robbery] said Jackson attorney John Reeves. ”He was convicted in Yalobusha County in 1976, and he’s been out for about 20 years. The law for a hundred years or more has said that the governor can do it, and it’s up to him to decide if the requirements have been met, nobody else.”
Oliver Diez is representing Kelly Bellapani, who was convicted of possession of a controlled substance:
“He was actually honorably discharged from the military,” Diaz said. ”He pleaded guilty to a crime about 15/20 years ago. He’s been a model citizen since, and I think he’s entitled to that full and complete pardon.”
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