NMissCommentor » Politics

The Mississippi Supreme Court just stayed the Pardons Case and set en banc hearing for 2/9

NMC — Wed, 01 Feb 2012 23:22:41 +0000

Briefs are to be filed by February 7th, en banc argument (that is, before the entire court) on February 9th, and the lower court proceeding before Judge Green is stayed.

I have never heard of an en banc argument set just over a week out!

Tom Fortner seems to have got their attention.

Update:

Here’s the order. The court takes all the petitions before it– from a number of cases, not just the ones before Judge Green– as interlocutory appeals, grants the interlocutory appeals, then yanks the cases from all of the trial courts, and sets it for briefing and argument as noted.

Kingfish, I think, misread the order. Here’s what I see: ”It is ordered that… that the Request for Immediate Stay for release from Custody filed by Kirby Tate…now considered petitions for interlocutory appeal, are hereby granted…” In other words, “we are reframing the petition for a stay, etc., as a petition for interlocutory appeal and granting that and setting a briefing and argument schedule.” No one is getting released by that order.

This is confirmed by the tag line, keeping the TRO in effect (a TRO that requires people in jail be kept there) “until further order of this Court.”

Chris Matthews: The Republican Primaries are about to be a Revenge Tragedy

NMC — Tue, 31 Jan 2012 18:02:04 +0000

One of the more riveting political opinion pieces I’ve seen lately.

Click here to view the embedded video.

He thinks there’s going to be blood on the stage.

A look at the AG’s pleadings in the pardons case

NMC — Mon, 30 Jan 2012 20:10:15 +0000

Here are the complaint, motion for a temporary restraining order, and the order granting the TRO in the pardons case, from Attorney General Hood’s webpage.

I would have thought that, to get relief– which requires showing likelihood of success– the attorney general would have had to show that a specific defendant got a pardon and he didn’t advertise (laying aside the legal argument over whether a court can even inquire into that). I don’t know what happened at that first hearing, but here’s what’s in the papers:

The complaint alleges that some of the defendants may not have advertised. The motion alleges the same thing. There’s no suggestion of who might have failed to advertise, just the general statement. Nothing is sworn, and the only attached exhibit is a list of the folks pardoned.
The complaint and motion then ask as relief that the defendants be held in jail (if they aren’t out already) and that those already out be ordered to appear at the next hearing, and that all of them be made to prove they advertised. In other words, it says “hold ‘em till they prove I’m not likely to succeed.”
The restraining order states that “some or all” of the pardonees failed to advertise, but doesn’t suggest who that might be. It also orders the pardonees to prove they published.

The complaint also invokes the court’s power to use the temporary restraining order to “preserve the status quo,” a commonly held view of the use of a TRO (as opposed to the actual formal purpose, to prevent irreparable injury, something that is mentioned in the motion without elaboration).

I’d be curious other lawyerly reactions, in comments.

Update:

Tom Fortner has filed for an emergency appeal; in his filing (which Kingfish has put up on his site) there are a lot more of the pleadings and orders, and much of interest. One thing that you can read is the transcript of the first essentially ex parte hearing; there was some hand-waiving toward proof (that is, Attorney General Hood talked about what he’d learned about publication for some of the pardonees, and some unsponsored exhibits were admitted). I’m going to put up some thought about Fortner’s filing in a separate post.

The New York Times looks inside the Barbour pardons

NMC — Fri, 27 Jan 2012 21:54:41 +0000

“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 who was 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.

How much does Bob Dole detest Newt Gingrich?

NMC — Fri, 27 Jan 2012 19:05:23 +0000

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.

_______________

*The actual story about the bucket is at the link.

Kingfish moves the pardon story along

NMC — Thu, 26 Jan 2012 16:26:33 +0000

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.

AP reports that pardon files don’t exist

NMC — Wed, 25 Jan 2012 22:43:55 +0000

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.

Some notes on the pardon TRO hearing and local news coverage

NMC — Tue, 24 Jan 2012 17:46:58 +0000

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.”

Twitter and the Pardons Hearing

NMC — Mon, 23 Jan 2012 21:09:50 +0000

Cottonmouth blog from the account @cottonmouthMS and Kingfish at Jackson Jambalaya, as @kingfish1935 are both doing live Twitter feed from the pardons hearing in Jackson, which has just begun.

Charles Griffin of Butler Snow files for Gov. Barbour in the pardon case

NMC — Mon, 23 Jan 2012 20:08:06 +0000

Butler Snow lawyers Charles Griffin (who signed the pleadings), Barney Robinson, Ben Watson, and Melissa Baltz have filed a Motion for Leave to Submit Amicus Curiae Brief on behalf of former Governor Barbour. The filing includes their proposed brief.

The legal arguments are what readers of this blog would expect: That the courts have no jurisdiction to go behind the Governor’s decision to issue a pardon, and no power to question whether the circumstances were appropriate for the issuance of a pardon. They start their argument by noting that the constitutional provision involved expressly calls for the Senate to consent on treason pardons and remittances of forfeitures. From this, they argue that the drafters knew how to set up review and expressly limited it. Thus, no review. They cite the cases cited by Tom Fortner, plus the dissent from Judge Etheridge that notes, by way of example, that a court could not review the publication requirement. They quote cases from Ohio and Florida plus language from Am.Jur. that states that a court cannot go behind a governor’s decision that the requirements of a pardon are met.

Beyond these legal arguments, there are some interesting facts:

The Governor made a decision about the pardons in a staff meeting on November 23, 2011. Prior to that, the Governor “routinely” sends applications to the Parole Board for investigation, and the Parole Board “typically” investigates them and the board votes on whether to recommend clemency. With mansion trusties, this isn’t done and the pardon or parole is based on information from the governor’s observation. The brief does not explain what other non-routine or atypical exercises of pardon power might be out there.

After that meeting, a staff member from the governor’s office called Charistopher Epps about publication of notices. In a follow up about that, by December 7, 2011, Assistant Attorney General Scott had texted that the MDOC was going to take care of publication. ”Special Assistant Attorney General Scott told Neely on December 6, which is 35 days before the Governor left office, that Scott would undertake to have the required notice publicshed…. Neely believed Scott.” (The brief somewhat skips over that Scott assured the governor that MDOC– which is a governor-run agency– was going to handle the publication. But then, at some point, one would think Scott would be obliged to tell his client there was a time issue).

By the 8th, MDOC staff had arranged for publications by Gatlin, Hooker, Kern, McCray, and Ozment, with all publications to begin on December 11th

The orders were signed on the 6th.

Finally, the brief responds to a position Attorney General Hood is taking that I am having a bit of trouble charitably describing. Hood is saying that the publication requirement means that a notice would have to be run ever single one of the thirty days, or, in counties with one newspaper, every single week. The language says “shall have published for thirty days…”

In any event, this is all coming to court in Jackson in about an hour.