NMissCommentor » Mississippi Legal

Lafayette County Courthouse Gets Its Clock Back

NMC — Thu, 19 Aug 2010 22:45:29 +0000

The man who’s been repairing the clock mechanism for the Lafayette County Courthouse brought it back today, and set it up in the hall downstairs. This is the one chance the public got to look at it before reinstallation in the cupola. The courthouse was completed in 1872, and the clock dates from about then.

Here’s some photos.

Judge Green explains the Irby sentencing poem to the Supreme Court

NMC — Wed, 18 Aug 2010 14:23:53 +0000

Jerry Mitchell at The Clarion Ledger is reporting that Judge Green wrote the Mississippi Supreme Court defending her sentencing poem in the Irby case. I’ll agree with Professor Steffey that the poem wasn’t out of line (not a literary gem, but nothing that should get the judge reversed):

“Any judicial statements and-or remarks made by the court in the sentencing hearing were properly based on facts evidenced in pretrial hearings,” Green wrote the state Supreme Court on Monday. …

Before sentencing Irby, the judge read a poem she had written from the victims’ point of view.

Irby is appealing that sentence, saying the judge violated rules preventing judges from being advocates for victims by writing that poem. The high court asked Green to respond.

In her response, Green explained that her “letter/poem” was written the morning of the sentencing.

“The court’s statements refocused the sentencing hearing on defendant’s illegal conduct, the fatal consequences of the defendant’s actions and the defendant’s request for additional mercy from the court,” she wrote.

Matt Steffey, professor at Mississippi College School of Law, said he thought Green’s slightly more than one-page response to the court was both succinct and responsive. “She did observe there’s no evidence for grounds of recusal,” he said. “It’s a legal sentence, which Mrs. Irby is now allowed to challenge on appeal.”

As for the poem, he said he thought Green did a “good job” of explaining her purpose in reading the remarks and added the verse didn’t strike him as “irrational or problematic.”

While reading a poem in a criminal case is unusual, “it’s not unusual for a judge to say things to a defendant,” he said. “It’s a lot more about form than substance.”

Court of Appeals affirms 10 years for being a felon hanging out near a gun

NMC — Thu, 12 Aug 2010 02:30:35 +0000

There’s a lot of mine-run stuff on the Court of Appeals decision lists this week– A workers comp case, an unemployment benefits case, and an odd little contracts case. In the contracts case, there’s an issue about attorneys fees and the way a notice of appeal and/or superseadeas divests a trial court of jurisdiction (on which there’s some probable dicta that has to be wrong about the impact of supersedeas); if you’re in a case where someone asks for attorneys fees after a notice of appeal has been filed, you might want to glance at it.

The one case worthy of comment has a Griffis opinion with a Lee dissent (joined by King Irving and Ishee) involving constructive possession of a firearm. The court affirms, and I think clearly gets it wrong. The case is Johnson v. State, and a few quotes pretty much say it all.

In the case, the sheriff showed up at a trailer with a warrant saying there was drug dealing going on there. While the warrant said it was not known whose trailer it was, the sheriff testified he knew Roy Lee Johnson lived there. Law enforcement more-or-less broke in, and found Johnson seated on the couch. He cooperated in their search, probably because nothing related to the search was there. While this was going on, a woman named Ava Ward came down the hall in the trailer, and, about that time, the officers noticed a .22 rifle eight feet away from Johnson, leaning against a wall.

The evidence it was Johnson’s? The sheriff thought he lived there, and he had a whole lot of shoes in the trailer. Seriously.

And so they arrested him for being a felon in possession of a firearm. This is, in my opinion, the law enforcement consolation prize charge– “we don’t have you on anything, but there’s a gun in the vicinity, so– SURPRISE– felony!” I’m certainly not a Second Amendment purist, but I really have a problem with a ten year sentence (which is what Johnson got) for being a felon hanging out in the vicinity of a gun.

The Griffis majority opinion starts by describing the law:

We have held that where contraband is found upon premises not in the exclusive control and possession of the accused, additional incriminating facts must connect the accused with the contraband. Where the premises upon which contraband is found is not in the exclusive possession of the accused, the accused is entitled to acquittal, absent some competent evidence connecting him with the contraband.

Well, all right. The sheriff thought he lived there. Ms. Ward seemed to be there, if not living there, and no evidence suggested it was exclusively his place other than him having a lot of shoes in the trailer. But I’m leaping to conclusions…

Sheriff Adkins testified that he was aware that he had previously interviewed Johnson at the mobile home. There was also evidence that Johnson resided in the mobile home; Johnson admitted that he owned ten pairs of shoes, which were in one of the bedrooms. More importantly, Sheriff Adkins testified that the rifle was “eight feet” away from Johnson. No one else was in the room; Ward was walking down the hall. Thus, the crucial fact was that the rifle was just a little more than two steps from Johnson. The proximity of the rifle to Johnson was evidence that Johnson had dominion and control over it.

Oh my gosh! He was in the room alone with a gun until Ms. Ward walked down the hall! Doesn’t “alone” sound like “exclusive?” Well, it’s close enough. Justice Lee, in dissent, though, saw things a different way. He said that for exclusive possession…

… “there must be sufficient facts to warrant a finding that [the] defendant was aware of the presence and character of the particular substance and was intentionally and consciously in possession of it.” Curry v. State, 249 So. 2d 414, 416 (Miss. 1971). “Constructive possession may be shown by establishing that the [item] involved was subject to his dominion or control.” Id. “Proximity is usually an essential element, but by itself is not enough in the absence of other incriminating circumstances.” Gavin v. State, 785 So. 2d 1088, 1093 (¶16) (Miss. Ct. App. 2001).

Those are the principles I remember about constructive procession. The dissent goes on:

Law enforcement officers testified Johnson did not attempt to reach for the rifle at any time that night. There was no testimony regarding who owned the rifle or the mobile home. There was no testimony concerning Ava Ward’s presence in the mobile home. The State’s case relied solely upon the presence of Johnson’s shoes in the mobile home and the testimony of law enforcement officers who knew that Johnson sometimes stayed at that particular mobile home. In Gavin, this Court stated the following:

Being in a closed area such as a vehicle or a room with contraband does not by itself permit the inference of dominion and control. If the accused is the owner of the premises, or if he is the exclusive user for some extended period of time, or if there are additional incriminating circumstances, then the inferences might be permissible. …

Law enforcement officers testified Johnson did not attempt to reach for the rifle at any time that night. There was no testimony regarding who owned the rifle or the mobile home. There was no testimony concerning Ava Ward’s presence in the mobile home. The State’s case relied solely upon the presence of Johnson’s shoes in the mobile home and the testimony of law enforcement officers who knew that Johnson sometimes stayed at that particular mobile home. In Gavin, this Court stated the following: Being in a closed area such as a vehicle or a room with contraband does not by itself permit the inference of dominion and control. If the accused is the owner of the premises, or if he is the exclusive user for some extended period of time, or if there are additional incriminating circumstances, then the inferences might be permissible.Id. at 1094 (¶21).

The case also has a weird procedural bar discussion over a search warrant. The application for the search warrant said that the sheriff had a “creditable” source that drugs were being dealt out of the case. The majority opinion quoted a long section out of Johnson’s brief arguing that “creditable” does not mean the same as “credible,” and quotes a bit of trial transcript where the Judge and defense counsel argue about that issue. Johnson’s argument seems to be nothing more than a warrant affidavit saying that a source has been creditable does not establish the source has been credible and therefore is inadequate. The Court of Appeals gives the back of its hand to this argument (no surprise, and I’ll note it seems a silly argument) but then piles on by saying that, after making this argument, Johnson cites a case (about the requirement for a search warrant) and that Johnson doesn’t argue how that case supports reversal and so his issue is barred. But he does make an argument. Not a good one, but it’s an argument. The evocation of procedural bar was a bit excessive there.

A reminder to visit the 12th Chancery District blog

NMC — Tue, 03 Aug 2010 15:22:15 +0000

An email about what’s disappeared from my blog since the great data theft (by my former host, GoDaddy) reminded me of a couple of entries on the blogroll that went missing; one sent me back to the 12th Chancery District blog, which has to be the most useful tool for practitioners in the Mississippi blogosphere. Judge Primeaux’s major focus is tips for practitioners in Chancery Court, and it includes checklists for various cases that might arise in chancery court, tips for being prepared in his or any courtroom, and observations about life generally that one expects from a good blog. Recently, he posted this question, actually asked in his courtroom:

“You realize, do you not, that the flip side of that coin is a two-edged sword?”

A very high ratio of useful-information-per-post.

I read this one, and wondered if the Fifth Circuit waiver rules were a two-way circuit…

NMC — Tue, 03 Aug 2010 03:26:35 +0000

So the Daily Journal reports that US Attorney’s office is appealing a sentence because of a math error– apparently the judge was given the impression she was giving the maximum, and (says this newspaper report) she wasn’t.

I’m not minimizing the seriousness of the crime– a deputy sheriff using fake traffic stops to shake down Hispanics and take the contents of their wallets– but I just know the prospects of an appeal of a math error like this where it came from the defense side, if objections weren’t raised and the issues weren’t presented to the trial judge every way possible.

A review of the docket does not make things much clearer. The defendant, Michael Shane Minich, a former Lee County deputy sheriff, was pleading guilty to an information with four misdemeanor counts. Here’s the plea agreement . There’s a supplement that’s visible on the docket but under seal– which suggests that Minnich is a cooperating witness. Then Judge Aycock sentenced Minnich to 12 months on each of the four counts, to be served concurrently– that is, he serves all four at the same time.

And then the Assistant U.S. Attorney in charge of the criminal division enters an appearance and a notice of appeal. About what? The question of whether the sentences are to run concurrently or consecutive? Patsy Brumfield’s Daily Journal story says:

While no one at the U.S. Attorney’s Office in Oxford was available for an explanation about the appeal, Lee County Sheriff Jim Johnson said Monday he was told that Minich’s possible prison time was calculated incorrectly in his mandatory pre-sentence report written by the U.S. Probation Service.

I’m even more confused than I was when I read the newspaper story, willing to have anyone enlighten me about what I might be missing. And I repeat the question asked by the header– is waiver going to bea two way circuit? Or, more colloquially, is sauce for the goose sauce for the gander?

Motorhome Diaries Folks File Motion to Suppress, tort claim letter

NMC — Thu, 25 Feb 2010 19:53:30 +0000

The Motorhome Diaries folks have fired their next barrage against Jones County. First, from an article in the Laurel, Mississippi Leader-Call that sums up the situation:

Pete Eyre, Adam Mueller and Jason Talley were traveling through Jones County on I-59 North on May 14 when they were stopped by Jones County deputies.

In Laurel Justice Court in September, deputy James Atkins testified that he pulled the group’s RV over because he could not read the temporary tag. He said the three were later arrested because they were disruptive and didn’t obey his commands when they were asked to show identification. The three were found guilty of their respective charges. Their bond payments were enough to cover the fines on their charges and no jail time was required.

According to a letter from Jackson-based attorney Michael Cory, the agencies are being sued “for the unlawful conduct of their law enforcement officers who were acting within the scope of their employment in reckless disregard of the safety and well-being of the claimants and the reckless destruction of their property. None of the claimants were at the time of the event described below engaged in criminal conduct.”

Jones County Sheriff Alex Hodge, deputies James Atkins, Abraham McKenzie, Carrol Windham, State Trooper Chris Walker, Highway Patrol Director Michael Barthay, Public Safety Commissioner Stephen B. Simpson and Chancery Clerk Larry Ishee are all listed in the lawsuit.

The suit seeks more than $250,000 in general damages stemming from the arrest.

It also claims that on July 23, following the Jones County incident, Eyre and Talley were detained by the Canadian Border Service Agency when trying to enter the country through the Vermont border.

Cory states in the letter that the two were denied entry into Canada due to “false reporting of a ‘gun’ charge on Eyre’s record stemming from the Jones County events.

“The false information generated by the unlawful conduct of the Jones County Sheriff’s Department and the Mississippi Highway Patrol has resulted in a severe and unwarranted restriction upon the claimants’’ ability to travel internationally,” the letter states.

The case represents classic police abuse of bogus traffic stops and disorderly conduct charges– someone doing something legal continues behaving legally when a cop says “stop,” and suddenly legal behavior becomes a crime under the influence of the officers magic wand (or baton). In prior posts, I’ve described the initial stop, posted a plea that someone sue Jones County along with noting that the sheriff explained the stop by saying the MotorhomeDiaries folks had were activists with an agenda (oh, no! They probably even think we should allow everyone to vote!), and posted an eyewitness account of their Justice Court experience.

Here’s their notice under the state tort claims act. The act requires a pre-suit notice for claims against the state for state-law torts (like false arrest or the like) that describes the claims, damages, and witnesses. This one does that, and in the process tells the story of the stop as thoroughly as anything I’ve seen. There are lots of details, including some funny ones: “Deputy Atkins now claims that he was concerned that Mueller’s video camera could have been a disguised firearm.” Here’s Motorhome Diaries Suit Letter.

These folks’ lawyers have also filed a motion to suppress, arguing that any police testimony or evidence (and I’m not sure what the evidence against the motorhome folks would be– that one beer from the motorhome fridge?) was illegally obtained. Here’s that motion.

The New Albany City Attorney situation: Well, it seems certain all the lawyers are relatively happy…

NMC — Tue, 23 Feb 2010 03:33:36 +0000

The Daily Journal reports that New Albany has a new (well, repeat, or used, or something) city attorney, but everyone gets paid:

New Albany Aldermen unanimously approved the hiring of Roger McMillin as city attorney Monday night. McMillin has served previously for almost a dozen years as New Albany city attorney.

He replaces long-time city attorney Robert M. Carter. It was also announced at the meeting that the board will pay the remaining part of Carter’s contact and that Carter will work with McMillin to smooth the transition.

The city board members became upset with Carter when they learned that he had filed a lawsuit seeking class action status against Toyota, which is building a plant in nearby Blue Springs.

The Government attacks appointment of counsel for Hal Neilson

NMC — Thu, 18 Feb 2010 17:02:10 +0000

In a pretty nasty pleading– it’s not the pleading equivalent of a brushback pitch, this ball is being thrown straight at the batter’s head– the Government has asked the court to rethink appointment of counsel for indicted F.B.I. agent Hal Neilson. To support their motion, they make all kinds of very specific statements about Neilson’s financial status (which they note they’ve been investigating), outlining his income and assets, and conclude by demanding a copy of his affidavit that supported his request for appointive counsel, stating on the one hand it could be a false statement to the court and on the other hand it could be used as 404(b) evidence (that is, evidence of other, allegedly similar misconduct) at Neilson’s trial. The basic thrust of the motion is that the Government thinks that Neilson could only have received appointed counsel by lying in his affidavit. Ouch!

The motion is available on YallPolitics, here.

Stanley Cole trial to be streamed live on WAPT television in Jackson

NMC — Wed, 17 Feb 2010 05:10:03 +0000

In Jackson, a jury has been selected in the Stanley Cole murder trial; opening statements are at 9:00 AM tomorrow. I’ve been told that it will be live-streamed on WAPT-TV’s website in Jackson. It’s top page says “Watch It LIVE On WAPT.com.” WAPT describes the case:

Norman disappeared off the Jackson State campus Nov. 13, 2007. More than two weeks later, on Nov. 29, 2007, Cole was in court in Pearl to face charges of assaulting Norman at a Pearl restaurant. But he was taken into custody before he saw the judge. Later that day, police said he led them to Norman’s body in a wooded area of north Jackson. Police charged him with murder.

New Albany lawyer implosion over suing Toyota?

NMC — Sat, 13 Feb 2010 20:14:30 +0000

New Albany lawyer Robert Carter agreed to be local counsel for a class action against Toyota over sudden acceleration. Recall that the as-yet-still-in-process Toyota plant is to be built in souteast Union County, between New Albany and Tupelo.

The suit (here’s the Toyota Class Action complaint) was filed in the federal district court in North Mississippi. Now the City of New Albany, for whom Robert Carter has been City Attorney for ten years are furious, and perhaps even the law firm Sumners, Carter, and Meuller (who possess the most elemental law firm website I’ve ever seen. It will be really easy to make any necessary changes on that one) may be imploding over this. Thad Meuller (who is the attorney for the Union County Board of Supervisors) is apparently withdrawing from the firm. The Tupelo Journal reports:

Longtime city attorney Robert “Bobby” Carter faces ouster after 15 years of service because he agreed to file a federal lawsuit against Toyota.

The automaker’s newest facility sits just a few miles southeast at Blue Springs, in Union County, awaiting the corporation’s production go-ahead in the midst of a global recession and a massive product recall.

“Toyota’s not as upset as we are,” New Albany Mayor Tim Kent said Friday about his Board of Aldermen’s five members, who’ve worked with Carter across two decades.

Carter was unavailable for comment Friday.

Monday night, aldermen will go into executive session to discuss whether Carter should keep his job with the city.

Kent says Toyota sees the lawsuit as “just business,” although the officials he talked with say they would have preferred its filing in south Mississippi instead of the Northern District, where the company eventually plans to make vehicles.

Wednesday, Carter filed the class-action lawsuit on behalf of Belva Simmons of Union County, who claims her 2007 Camry is one of thousands under the recall because of sudden acceleration problems.

She’s seeking damages for the loss of value of her vehicle and because, she claims, Toyota has known about its vehicle problems for years.

Carter has offered to withdraw from the lawsuit, which he filed in Mississippi for two Alabama law firms, Kent says.

“I don’t know if that will make a difference,” the mayor speculated. “He’s been a good city attorney. I’d hate to see it end like this.”

He said the employment decision was put off until Monday to give aldermen a little time to let emotions cool.

Carter’s law partner, Thad Mueller, is attorney for the Union County Board of Supervisors.

Mueller reportedly has caught flak about the lawsuit, although he apparently is not directly involved with it.

“I can tell you that I have not been fired by the Board of Supervisors,” he said in a Friday e-mail.

Although he declined to say whether the controversy has caused him to withdraw from the law firm, Sumners, Carter & Mueller, a well-informed local source, speaking on assurances his name wouldn’t be used, said Friday that Mueller has severed his ties with the firm.