The big news from the Mississippi Supreme Court’s decision list today is not the opinions, but the orders requiring trial courts to rule, soon, or other responses– all the orders require action in sixty days–on Post Conviction Relief petitions in capital cases. Four of the cases involve the question of whether the defendants are mentally retarded and therefore not subject to the death penalty (these are Willie Russell, Sunflower County; Rickie Chase, Copiah County; Ronnie Lee Conner, Lauderdale County; Kevin Scott, Bolivar County). In others the court orders a decision from the trial court or an explanation why the matter is still pending (those are Joseph Brown, Adams County and Willie Jerome Manning Oktibbeha County, respectively; in Marion Latodd Howell, Union County, the trial court is to respond to an order (not made part of the decision list). In an eighth case, the state and defense are to respond to the court’s order (Clyde Wendell Smith, Leflore County), and a ninth the state and defense counsel are to show cause why there has been no effort to pursue post-conviction relief in matter (Fred Sanford Spicer, George County)
Here’s what’s in the opinions:
- In Vaughn v. Mississippi Baptist Center, a medical malpractice case, there’s a disupte over whether a nurse is qualified to express an opinion about causation where the question is whether a staph infection was caused by failure of nurses to follow the standard of care. The six vote majority opinion by Carlson says she is not; Kitchens, joined by Graves dissents, saying she is.
- Smith v. Smith is a child support contempt case. The father asserted the mother was behind $24,000 in child support. The mother responded that she’d had garnishments for some of that period that should be credited, and that the child had lived with her some of that period. She had no documentation (she testified about unsuccessful attempts to obtain it– the garnishments were in the 1990s. The chancellor accepted her testimony and gave her $14,000 in credits. On appeal, the court in a Pierce opinion held that her own testimony was inadequate on both counts. Chandler dissented, holding that her own testimony about the times the daughter lived with her (which was sort-of corroborated by the daughter and husband) should have sufficed on that credit. I find this one odd because it reverses a chancellor on a finding of fact on both issues.
- ARCO Oil and Gas v. EOG Resources is about whether publication of notice of a tax sale against the surface owners suffices to provide notice to mineral owners. Under the circumstances, it did. These people were litigating a 1941 tax sale!?
- Kuiper v. Tarnabine is an odd case, but not in an interesting way. Another medical malpractice case involving summary judgment, in this one the defendant moved for summary judgment and the plaintiffs utterly failed to respond, yet the trial court denied the motion. On interlocutory appeal, the court ruled that the unanswered summary judgment should have been granted because the plaintiff came forward with no expert. I’ll just leave it to you to read the plaintiff’s only real argument, about the ten day notice rule on summary judgments.
- One case, Tate v. State, shows how easy it is for defense counsel to invite (and make permissible) a prosecution comment on the defendant’s failure to testify. Basically, if the defense challenges the prosecution case in closing argument, the prosecution can then say that the case is about “who do you believe, him or her” in his final closing (where the defendant– the “him” in that quote– failed to testify). The trial judge had sustained an objection as to that argument, and then instructed the jury to ignore it; the Supreme Court holds that was excessive caution and it would have been ok just to overrule the objection.
I’m curious the reaction of FormerPD to that holding. The other issues in Tate involved jury selection (a juror said something about knowing about another case against Tate) and whether it was prejudicial to allow repeated references (explicit and implied) to concerns the defendant would commit suicide (which would have suggested feelings of guilt).
- There’s Jay v. State, a criminal case where the defendant, having been hit on the head, may not have been competent to stand trial. The trial court denied a motion to continue without a competency hearing (the trial court had a report from the defendant’s doctor, and a report from a doctor the court had appointed to check the defendant; they conflicted). The defendant took flight the day of trial, and, after a few minutes seeking him, the judge tried him in absentia. Later, the trial court rejected his motion for a new trial on the grounds it had not been timely brought up (it was timely filed; based on that, the state argued he’d not timely noticed an appeal. The court held that there is no requirement of a deadline for bringing up a post trial motion, and therefore his notice of appeal was filed in time, and that the trial court erred in refusing to hold a competency hearing. The court’s opinion ends sort of dangling: “This matter is reversed and remanded for a new trial subject to a competency hearing, and provided the trial judge determines in the course of the Rule 9.06 hearing that Jay is competent to stand trial.” Shouldn’t there be another phrase before that period?
I’ll accept the invitation to comment, thanks.
My initial reaction after a quick read is that there was a lot of improper argument in the prosecutor’s closing, leaving aside from whether the prosecutor commented on the defendant’s failure to testify. To my mind, claiming that these cases boil down to “his word versus hers” is an improper statement of the law — namely burden shifting. The state’s burden is proof beyond a reasonable doubt. One side more believable than the other is the burden in a civil case. In criminal cases where it does boil down to one word against another, defense counsel needs to be resolute about a prosecutor engaging in this, and, as dangerous, a jury going to deliberate and choosing a verdict on who they believe more. Each and every juror must find beyond a reasonable doubt that the defendant is guilty, which no doubt will involve a weighing of relative testimony, but should be much more than that. The other thing I would point out is the impropriety of the prosecutor saying that he “hated” these cases because they often featured this dynamic. Who cares what the prosecutor thinks about these cases. Completely irrelevant and improper. What he is saying is that he believes in his case and “hates” the idea that his evidence comes down to this type of proof. Which in my mind is another way of reminding the jury that child abuse happens all the time and people can get away with it because they make sure to do it with no witnesses etc. Why is he being allowed to talk about all the prior child abuse cases he’s had and how horrible they were? Where is the objection? Where is the MSSC’s discussion about this?
On interlocutory appeal, the court ruled that the unanswered summary judgment should have been granted because the plaintiff came forward with no expert.
Is this the *first* Miss. case where failure to grant SJ on the no-medmal-expert issue was held an abuse of discretion, just like that?
I’ve seen recent cases upholding a dismissal as within discretion, but I’m not sure I’ve seen the MSSC reverse on this ground before.
The nurse-expert case was also interesting as the first definitive holding on an issue that we medmal-defense types had assumed was the law — that a nurse cannot testify as to proximate causation where any kind of diagnosis is at issue.
…”a staff infection was caused by failure of nurses”? Think you meant “staph” as in staphylococcus. Unless medmal cases are now filed in personnel matters!
Thanks for the giggle, it’s been a long week!
Well, when the staff’s infected, what chance do the patients have? Isn’t that a leading cause of death in hospitals?
I’m not an attorney, but I have an interest in a matter that has been before the MSSC for over six months since the time that the last brief was filed. The pace whereby the SC issues opinions appears excruciatingly slow. According to the published hand-down lists, the COA has issued 61 written opinions during the last five weeks, while the SC has issued only 13 written opinions. That’s 61 to 13. What is the reason for such a wide discrepancy in production? Is this normal? How is the SC going to get through its docket without exceeding the relevant time limitations imposed by statute? I understand that I’m not quite there yet, but what recourse does someone have when such timeframes are exceeded by the SC? If anyone could give me an idea as to what can be done to speed this process a bit, please let me know. Thanks for your indulgence.
interesting but not surprising, out of the 9 orders requiring the trial courts to rule, 8 were black men. Out of those, Willie Manning was smiling like a crazy man.