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

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.

“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.

*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.

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.

]]> http://nmisscommentor.com/law/hal-freeland-obituary-and-funeral-arrangements/feed/ 8 http://nmisscommentor.com/law/surviving-assassin-does-a-shout-out-on-facebook-more-from-alleged-greenwood-hit/ http://nmisscommentor.com/law/surviving-assassin-does-a-shout-out-on-facebook-more-from-alleged-greenwood-hit/#comments Fri, 11 May 2012 07:02:56 +0000 NMC http://nmisscommentor.com/?p=11468 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 [...]]]> 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).