NMissCommentor » Mississippi Legal

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.

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.

The Greenwood Commonwealth asks about Dr. Arnold Smith: “Medical Genius or Deranged Killer?”

NMC — Sun, 06 May 2012 14:41:18 +0000

There’s a long account of Dr. Smith’s adventures in Greenwood leading up to the arrest last weekend in this morning’s Greenwood Commonwealth titled, “Medical Genius or Deranged Killer?”

It starts by describing his medical career, noting that, in 2009, the Mississippi legislature passed a resolution that honored Smith’s “charitable and compassionate medical service to his community and state.” It then moves on to a sequence of minor arrests and rough bumps with the law that began in 2004 when he sought a reduction in child support from his ex-wife, who responded with accusations of child molestation. The paper notes that these charges “had perhaps the least basis and received the most attention,” and were ultimately dropped. There was a later arrest over a scuffle with a contractor over bricks Smith was salvaging, then an incident involving a traffic stop. The article also recounts the bizarre charge Smith made that his furniture had been replaced with nearly identical copies, and that there had been multiple complaints to the state Board of Medical Licensure, including one last year questioning his mental competence, that were all dismissed.

The paper states the current trouble “began brewing most recently” with an alleged April 3rd burglary at a mansion Smith uses for his cancer patients to stay in while getting treatment at his clinic, followed by Smith’s claim that on April 12th, he was stabbed and beaten by a man who said he had compromising pictures of Lee Abraham.

The story closes by noting Smith’s political alliances, supporting political foes of Abraham and his brother (chancery clerk Sam Abraham), such as David Jordan and the Greenwood Voters League and state representative Willie Perkins.

There’s lots of details about all this in the story.

A couple of questions. First, is this the Third Man? (more Greenwood hit man news)

NMC — Thu, 03 May 2012 20:49:16 +0000

Update: Police in Greenwood are saying that this arrest is in connection with another murder for hire scheme involving Dr. Smith. The Greenwood Commonwealth has changed the story about the arrest, saying that the police chief said it is “unrelated” to the Saturday incident, but that the arrestee was arrested with regard to “other arrangements” the arrestee had made with Smith. Back to the themes in the title, with deletions.

Second, have you ever seen a face this asymetrical?

My personal answers are: ~~Looks that way~~, and, it’s hard to tell, I’ve seen a lot of faces in my time, but this sure is an asymmetrical one.

My first answer is based on the report in the Greenwood Commonwealth that the guy in the picture, Cordarious Robinson, was arrested in Greenwood Wednesday for conspiracy to commit murder and being a felon in possession of a firearm. ~~All law enforcement is saying is that it was in connection with the incident at Lee Abraham’s office on Saturday.~~

Another question: If cordarious were an adjective instead of a name, what would it mean (obviously not the same thing as cordarius, which seems to pertain to things having cord-like character).

“I am Lacy, I am Byrd,” chanted Duchess Dallas at protest over Greenwood hit man case

NMC — Wed, 02 May 2012 21:13:01 +0000

The Greenwood Commonwealth is continuing its fascinating coverage of the incident in Lee Abraham’s law office with two stories about the fold. First, Paul Muller has been released on bond. There’s a possibility he should have been released, period: law enforcement can’t seem to come up with the arrest warrant and supporting affidavit charging Muller. John Collette, as an uninvolved observer, noted that, lacking a warrant, a lawyer would have made a motion to release Muller. ”That’s kind of basic. You’ve got to have a charging document,” Collette told the paper. No one could confirm to the paper which agency charged him, or what he exactly was supposed to have done. The Greenwood police chief said “We’re going to go ahead and try and finish working it without putting any additional information out.”

If he needs to “work it” before saying what and how they have charged Muller, they’ve pretty well got the cart before the horse down there.

Meanwhile, protesters chanting “I am Lacy, I am Byrd,” lead by a Valley State student named Duchess Dallas, showed up with similar signs at the Leflore County Courthouse.

This story is a gift that keeps on giving.

Duchess Dallas explained that they weren’t saying whether Byrd (the alleged hit man) or Lacy (his alleged accomplice) were guilty, but that they were demanding equal treatment for them. She has contacted the NACCP about a larger rally. The Commonwealth article states “Many in Greenwood’s black community have questioned the version of events laid out by law enforcement officials.”

I would presume that all others allegedly involved would ask that they not get equal treatment with Lacy or Byrd (and particularly Byrd).

The story also notes that a contractors dumster full of debris was outside Abraham’s law office, where workers were patching bullet riddled holes.