The only opinion on yesterday’s Mississippi Supreme Court decisions list is a slight modification on reheariing of a unanimous one from January reversing a summary judgment relating to Audubon’ Insurance’s adjusting of Katrina claims relating to the wind-versus-water evaluation of damage to a “slabbed” house. The changes are the addition of two footnotes (footnotes 4 and 5, which do not seem that consequential) and the deletion of what had been paragraph 11 (I have no idea what that was. If someone has a copy of the prior opinion, you could quote or paraphrase it in comments). The court had reversed for several reasons, primarily that the summary judgment was in error because there was a jury question as to whether Audubon was acting as an agent or a coprincipal, whether Audubon acted with grossly negligent for sending out an adjuster with no training in the relevant subjects (meteorology, engineering) and instructed to make blanket assumptions about the water damage based on the location of the house.
There’s also a denial of rehearing on an opinion from last December, Smith v. State, which affirmed a murder conviction from Hinds County. The case had been reversed by the Court of Appeals, and in the opinion last December, the Supreme Court overturned the reversal The vote is interesting– Graves, Dickinson, Lamar and Kitchens would grant, Chandler sits out (which means rehearing is denied by a tie vote). In the original opinion, Smith wrote, Graves and Dickinson concurred in the result only, and Diaz dissented without an opinion, so the rehearing petition shook things up, but not enough to change the result.
Looking at this result, there’s a certain randomness involved– if the Supreme Court had voted 4-4 in that original December opinion, the Court of Appeals reversal would have been upheld and the conviction would have been overturned! Instead, because Justice Smith’s opinion had originally overturned the Court of Appeals opinion, the 4-4 vote means the reversal was overturned and the conviction stands.
The issues were, first, whether the trial judge should have recused herself after ex parte contact from defense counsel during the trial (about a defendant’s confession to defense counsel, no less), speedy trial, voluntariness of the confession, prosecutor’s comments in closing, and an ineffectiveness claim. It is that ex parte contact that resulted in the original Court of Appeals reversal.
Add in this to the ironies in the 4-4 rehearing decision:
If Chandler were not sitting the case out (he’s doing that because he was on the Court of Appeals) and voted as he did in the Court of Appeals, the case would be reversed instead of affirmed.
NMC, you seem to have two links, “an opinion from last December” and “Smith v. State”, but they point to the same opinion, the one written by Smith on 12/4/2008. Where is the opinion on the rehearing? Thanks in advance.
The 12/04/2008 opinion seems to be well reasoned to me, a non-lawyer, in that the jury did not hear any testimony about the ex parte contact, nor about the defendant’s confession to his counsel, nor about his intention to perjure himself and to get others to perjure themselves. Indeed, as Smith notes, if the ex parte contact was enough for a reversal then any subsequent judge who read the court record would have to recuse, making the case moot and unable to be tried by anyone. If that was the case it is easy to imagine unscrupulous defense attorneys, in passing the judge in a public place, telling the judge “my client confessed the crime to me and says he is going to lie on the stand”, rendering the case moot.
There is no opinion in the rehearing denial, WTBAL, just an entry in the decisions list. More later about what I think was problematic about that case…