I am Tom Freeland, a lawyer in Oxford, Mississippi. The picture in the header is my law office. I'm on Twitter as NMissC

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Miss. Supreme Court, 5/15: A tie vote proves it’s all in the timing

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.

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