NMissCommentor » Law: National

Scruggs to Judge Davidson: Decide my petition, because I could be getting out soon.

NMC — Tue, 22 May 2012 13:32:19 +0000

Dickie Scruggs has filed a motion in Scruggs II asking the court to go ahead and decide the case. Writing with uncharacteristic brevity, his lawyers note that his release date on the five year sentence in Scruggs I would be in November of this year and that he’d be eligible for half-way house or home detention under the Bureau of Prisons regulations on May 23rd. They also note that briefing on the case was completed in April, and ask for a decision so either Scruggs can go ahead and get out or appeal to the Fifth Circuit. They close by quoting the author of The Daily Study Bible.

Here’s motion. Meanwhile, Sid Backstrom yesterday filed a motion to end supervised release.

What could this possibly be?

NMC — Mon, 21 May 2012 19:20:14 +0000

After lunch, these two entries hit the docket in Scruggs I about five minutes apart:

05/21/2012	408	MOTION for Leave to File Pleading Under Seal by Steven A. Patterson. (llw)
05/21/2012	409	ORDER denying 408 Motion for Leave to File Pleading Under Seal as to Steven A. Patterson (5). Signed by Neal B. Biggers on 5/21/2012. (llw)

The first item is not available through Pacer, at least yet. The judge’s order simply says NO!

Update:

Looks like my first joke-guess was the closest. He wants to do an Ole Miss alumnae European trip. The probation service says fine, and Judge Biggers approved it. Here’s the motion and here’s the order granting it.

Some notes on the possible defenses suggested at Dr. Smith’s preliminary hearing

NMC — Sun, 20 May 2012 14:27:28 +0000

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.

___________

*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.

“You’ve got a cellphone. Take a picture with a hole between his eyes.” Sounds like probable cause to me.

NMC — Wed, 16 May 2012 19:11:21 +0000

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.

Some details about Dr. Smith’s alleged prior effort to hire a hit man emerge

NMC — Sun, 13 May 2012 02:57:23 +0000

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.

Hal Freeland, obituary and funeral arrangements

NMC — Sat, 12 May 2012 21:52:22 +0000

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.

Surviving assassin does a shout-out on Facebook? More from alleged Greenwood hit…

NMC — Fri, 11 May 2012 07:02:56 +0000

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).

I’ll let my sister say it.

NMC — Fri, 11 May 2012 03:14:20 +0000

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.

Katzenbach was dismissive to George Wallace, saying “I’m not interested in this show.”

NMC — Wed, 09 May 2012 22:06:10 +0000

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. …

He was important in the passage of the Civil Rights Act of 1964 and the Voting Rights Act of 1965 (which he helped draft).

In September of 1962,

in the face of riots, he was dispatched to the University of Mississippi to enforced a federal court order requiring the university to admit its first black student, James Meredith.

“If things get rough, don’t worry about yourself,” Robert Kennedy told him, according to Arthur M. Schlesinger Jr. in “Robert Kennedy and His Times.” “The president needs a moral issue.” …

After President Kennedy was assassinated, Mr. Katzenbach ran the Justice Department as Robert Kennedy grieved at home. He also took steps that have intrigued students of the assassination ever since.

In a memo to the presidential aide Bill Moyers, dated Nov. 25, 1963, three days after the shooting in Dallas, Mr. Katzenbach proposed that an independent national commission be established to investigate the killing. Conspiracy buffs have long interpreted the memo as explicitly calling for such a panel to come to a predetermined conclusion.

The memo began, “The public must be satisfied that Oswald was the assassin; that he did not have confederates who are still at large; and that the evidence was such that he would have been convicted at a trial.”

Mr. Katzenbach maintained later that his goal had been to gather, not cover up, evidence against Lee Harvey Oswald, who he was convinced was the lone assassin. …

He also tried to navigate a treacherous course between King and Hoover at the F.B.I. He had agreed with Robert Kennedy in 1962 that it was necessary for the F.B.I. to tap King’s phones in the face of Hoover’s accusations that King was associating with Communists. Mr. Katzenbach said that he and his boss believed the taps would clear King.

But when he learned that the F.B.I. was doing far more than tapping phones, that it was bugging hotel rooms to record King’s extramarital sexual encounters, then trying to blackmail him, even suggesting that he commit suicide, Mr. Katzenbach drew the line.

“I flew to President Johnson’s Texas ranch to ask him to put a stop to it,” Mr. Katzenbach wrote in The Los Angeles Times in 2006. “I think he did so, but such was Hoover’s power, I cannot be sure that even the president had the courage to do so.”

Mr. Katzenbach resigned in 1966, stating that “he could no longer effectively serve as attorney general because of Mr. Hoover’s obvious resentment of me.” Johnson appointed him under secretary of state, replacing George W. Ball, who had resigned.

As under secretary of state, the No. 2 post at State, Mr. Katzenbach defended the legality of United States involvement in Vietnam, appearing before the Senate Foreign Relations Committee in August 1967 to argue that the Tonkin Gulf resolution, passed by Congress in 1964, had given the president the authority to widen the war. …

Opponents of the war had hoped that he would play the role Mr. Ball had — as a devil’s advocate challenging the administration’s policies from within. Mr. Katzenbach took a quieter tack, setting up a secret working group — “the Non-group,” he called it — to pursue ways to end the war. Mr. Katzenbach later said the group had added shades of gray to policy discussions and had contributed to bombing halts.

Smith to get a preliminary hearing, but probably not about the Illuminati conspiracy

NMC — Wed, 09 May 2012 20:04:33 +0000

Dr. Smith will have a preliminary hearing on May 16th at 9:00 AM. The prosecution will have to show that it has probably cause to prosecute Dr. Smith on the murder-for-hire scheme.

Meanwhile, Congressman Thompson asks for a federal investigation into the Greenwood murder for hire case:

U.S. Rep. Bennie Thompson, a Mississippi Democrat, said on Tuesday he asked the FBI, the U.S. Justice Department and the U.S. Attorney’s Office to investigate the April 28 shooting in Greenwood attorney Lee Abraham’s office. …

Thompson says his office has received “numerous complaints” about the shooting.

One wonders if Bennie Thompson is aware that Dr. Smith has stated that he has evidence of a conspiracy that goes all the way up to Obama? For more on that, check out the comments starting here and reading on down about Dr. Smith’s April letter to Gov. Bryant asking for an investigation of a conspiracy that was seeking to destroy Dr. Smith while at the same time running drug, prostitution, and I-don’t-know-what-all businesses operating out of a law firm dumpster in Greenwood.

Or it seemed to be saying that.

One thing the letter mentions repeatedly is Dr. Smith’s believe in the involvement of the Illuminati in this conspiracy. I first heard of the Illuminati when a friend who was at Vanderbilt told me I should read the Illuminatus Trilogy, a wild ride through every imaginable conspiracy theory (and probably my last hurrah as a science fiction reader).

Maybe it’s having read those, but it’s hard to read the letter’s references to the Illuminati without feeling the doctor is kidding. I guess I’m sure he’s not… but…

Pictured below is Adam Weishaupt, the founder of the Bavarian Illuminati, who, of course, plays a role in the books, as does the Eye of Providence and freemasonry. One of the jokes in the books is the notion that it is Weishaupt’s portrait and not George Washington on the dollar bill.

h/t Delta Fred in comments on the story about Thompson’s intervention.