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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What Judge Mills’s opinion says about Judge Kitchens and Forrest Allgood’s “candor” with the court

I really can’t overstate for laymen the stunning impact of a judge– who is, I think, thought of as cautious and conservative, but at the same time insistent on the integrity of the judicial system– ruling that another judge and prosecutor have, respectively, lied under oath and set about producing that lie to produce a death sentence.  But that is what Judge Mills has ruled in Quintez Hodge’s case, evaluating the conduct of district attorney Forrest Allgood, and his former assistant district attorney and now circuit judge, James Thomas Kitchens.  Judge Mills’s opinion states:

The Due Process clause of the Fourteenth Amendment prohibits the government from knowingly using, or failing to correct, false testimony. Giglio v. United States, 405 U.S. 150, 153 (1972). …

Judge Mils’s opinion goes on:

This issue was addressed at the evidentiary hearing held by this Court. At the evidentiary hearing, DA Allgood said that he asked then ADA Kitchens to handle the plea and get a sentence of no less than fifteen years against Petitioner. (Evid. Hr’g Tr. Vol. I at 33-34). He testified that he spoke to ADA Kitchens about the prior burglary plea before the sentencing phase of the capital murder trial began because he thought ADA Kitchens might need to be a witness. (See id. at 35). At the hearing held in this Court, Judge Kitchens and DA Allgood both stated that the “substance” of the statements testified to at the capital murder trial were true, but that there was a mistake as to who performed the allocution and what was on the record. (See, e.g., id. at 36, 40- 41). Specifically, Judge Kitchens testified before this Court that he was present at the 1998 burglary charge plea hearing and that, while it is not on the record, the State was seeking a term of imprisonment of fifteen years on the charge. (See id. at 49, 59-60). He also testified that Ms. Tatum stated that she did not want Petitioner to go to prison, and that her wishes were relayed to the judge. (See id. at 49-60).

The testimony of Mr. Kitchens at Petitioner’s trial and in this Court is factually at odds with what is contained in the record, and DA Allgood should have known that the testimony given by ADA Kitchens was false. See Giglio, 405 U.S. at 154 (prosecutor’s office is single entity; knowledge of one ADA is attributable to others in the same office). The Court notes that the first statement made by the court that sentenced Petitioner on the prior burglary plea is that “[t]he State has made no recommendation as to a sentence. . .” (Evid. Hr’g Ex. 4, 16). Also, there is no indication anywhere in the record that Petitioner’s attorney, Mr. Bambach, ever spoke to Ms. Tatum in person or that she expressed to him a desire that Petitioner not go to prison. (See Pet. Memo Ex. 4, 10-12). Moreover, ADA Kitchens, having been given notice that he would likely give testimony about this prior plea at the sentencing phase of a capital murder trial, apparently took no measures to ensure that he had an accurate recollection of what transpired. (See Evid. Hr’g Tr. Vol. I, 32; 52; 65). Even if Ms. Tatum stated that she did not want Petitioner to go to the penitentiary, that statement was never made in open court. Therefore, even if it occurred, it occurred off of the record and outside of Petitioner and his mother’s presence.

The Court determines that the State court reached a decision based upon an unreasonable determination of facts and involving an unreasonable application of clearly established federal law. Petitioner presented the State court with evidence to demonstrate that the testimony given at his capital murder trial was false, and that the prosecution should have known it was false. He has also shown that there exists a reasonable likelihood that the jury’s verdict might have been affected as a result of the false testimony. See, e.g., Creel v. Johnson, 162 F.3d 385, 391 (5th Cir. 1998). In this instance, the State, seemingly unconcerned with the accuracy of the testimony to be given in a trial where the result could be death, provided the jury with false information. That information was elicited to show that Petitioner is a remorseless liar who was shown kindness
that he refused to acknowledge and which he repaid by murdering the son of the woman who extended it. In light of these facts, this Court concludes that there exists a reasonable probability that this testimony affected the jury’s judgment. See Giglio, 405 U.S. at 153-55. Confidence in the verdict has been undermined by the State’s actions, there has been no demonstration that the error did not contribute to Petitioner’s death sentence, and Petitioner is entitled to relief on this claim.

42 comments to What Judge Mills’s opinion says about Judge Kitchens and Forrest Allgood’s “candor” with the court

  • Ben

    60 Minutes
    524 West 57th St.
    New York, NY 10019

    EMAIL: 60m@cbsnews.com

    PHONE: (212) 975-3247

  • Exterminator

    Its James [Jim] Kitchens, not Thomas.

  • Habeas

    Thanks for posting this. I have a similar issue in a murder (non-capital) pending in federal court in another jurisdiction — also involving a prosecutor who later became a judge.

  • meanderline

    O.K., the Scruggs stuff was terrible, but stupidity and greed I can understand.

    I’m trying to fathom what would motivate someone to lie so as to achieve a death penalty verdict. If I’m understanding this correctly this all happened at the sentencing phase so the defendant was already convicted, he was not going free in any event.

    I really, really hope that this was the result of poor memory (something which in my middle age I’m learning more and more about), and sloppiness in preparation, something which I at least have committed on occasion, although never – I hasten to add – in a death penalty case (I can say this with utmost confidence as I don’t do criminal law). Otherwise it speaks to a degree of calculated evil and malignity at the core of our judicial system which is truly terrifying.

    As I think about it, such carelessness with regard to the truth, if that’s what it was, in a sentencing hearing in a capital case is also terrifying. Was this issue presented to the Supreme Court on the appeal? I’m getting sick all over again.

  • Otherwise it speaks to a degree of calculated evil and malignity at the core of our judicial system which is truly terrifying.

    And here I was under the impression that it happens all the time — it just doesn’t get caught.

    God bless Judge Mills.

  • … Oh, and is anyone else getting weird super-tiny font size in these two Mills posts? Or is it yet another IE bug?

  • Phantom

    I am too, Anderson…At first glance, I thought most of the post was a footnote.

  • JaneT

    It’s Judge James Kitchens and way to go Judge Mills!

  • Former PD

    California’s Penal Code (Section 128) makes a person death penalty eligible if that person commits perjury during a capital murder trial that ends with the defendant’s execution. Just sayin’.

  • meanderline

    Well, the defendant’s still alive here, but perjury is still a serious crime under both the state and federal statutes.

    I presume Judge Mills could refer the perjury issue to a federal prosecutor since half of it apparently occurred in his courtroom.

    Although I’m apparently still not as cynical as Anderson I’m willing to wager that this matter goes no further than its current state of semi-public humiliation, i.e. no prosecution, no disciplinary proceedings, no front page story (O.K. maybe NMC will shame Jerry Mitchell and the CL into running it) and Kitchens gets reelected. On this note didn’t I hear he was running for the Supreme Court?

  • Ben

    Meanderline didn’t meander at all when he wrote: I really, really hope that this was the result of poor memory….

    A little benignity would go a long way this morning in North Mississippi.

    Truly, my heart is heavy for our state’s legal system. I think this is the same Judge Kitchens who wrote (I believe on behalf of the Mississippi Prosecutor’s Association) so strongly in favor of denying criminal defense counsel meaningful access to the resources (???) of the Mississippi medical examiner’s office. He forcefully advocated that the ME’s office be organized under the Mississippi Department of Public Safety (a law enforcement agency, of course) rather than the Mississippi Dep’t of Health, where those resources might be less “prosecution oriented.”

    The judge’s letter stated, in so many words, that the resources of the state are to be dedicated to the fullest prosecution of criminal defendants, and not to their defense.

    It’s a common joke line for lawyers to say, “All I want from the justice system are all the unfair advantages I can get.” Judge Kitchens musta missed the intended benign humor in that one.

    On a sidebar note: I’ve been out here on the back porch since a little after 6 am. I have seen only one hummingbird at our sugarwater feeders. I’m wearing a red Ole Miss t-shirt, and the bird has been buzzing close around me checking out the color and asking hot questions about the Jax State football game. We’re substantially on a first-name basis now. Imponderable questions surround me today.

    The little fellas have been in a feeding frenzy for the past 3 weeks or so, being their usual comically s*#tty little selves. I guess they took one look at Judge Mills’s opinion and decided it would be best to leave North Mississippi muy pronto. But there’s always a straggler.

  • billdees

    Ben @ 10:12. Not trying to hijack the thread, but same deal here in Madison with the hummingbirds. Seems kinda early for their departure. My only remaining bird is the bully who’s been trying to keep all the other birds off the feeders.

  • Meanderline: Judge Jim Kitchens and Justice Jim Kitchens are two distinctly different people. Here’s a short summary of the opinion in Fulks v. State that will clarify. (Fulks was the first unanimous reversal by the Mississippi Supreme Court since 1995, from what I understand.)

  • JaneT

    Too many Kitchens. As confusing as too many cooks.

  • meanderline

    Point taken. Plus the decision definitely manifests a refreshingly different approach to prosecutorial fairness.

    Thanks for the correction, as the correctee I’ll comment not just that there are too many Kitchens as Jane T. points out, but also that if one can’t stand the heat they should stay out of the Kitchen(s).

  • wilbur

    this opinion is clear and concise. it is a completely different writing style than maggette.

  • gottabe

    It appears from the small type font from the blog yesterday that Mr. James T. Kitchens was a judge by the time he testified at the post conviction hearing referenced by Judge Mills. Is that correct, or am I reading it incorrectly? If so, would he be under the jurisdiction of The Judicial Performance Commission on the question of misconduct?

  • Exterminator

    why the reference to the petitioner’s “mother”, that makes no sense. why no link to the whole opinion.

    why in the Universer’s good sense would have Allgood called his ADA as a witness. Why not just put the transcript of the former hearing in. Well, maybe Judge Mills realized the records didn’t match up with the testimony.

  • pr1954

    Ben and Bill Dees, There were still the 12-20 hanging out here today. If you look at a map of MS and stick yore finger in what looks like the center… you’ll be pretty damn close to where I’m at.

  • Anderson

    What is the source for this opinion? Is it on PACER?

    Mildly curious that no one’s posted it yet. (If I were really curious, I’d pull it off PACER myself.)

  • Philip

    A little off topic, but I’d be interested in hearing NMC’s views on the destruction of the Republican’s potential Senate majority at the hands of the Tea Party. The Democratic party couldn’t have come up with a better election device than the Tea Party.

  • Tim

    If this is the same Judge Kitchens in Starkville, he needs to be removed from the bench. He is abusive in his handling of criminal cases and now a proven liar.

  • JaneT

    Yes, he was a judge when he testified in the PCR hearing and he is the same judge in Starkville/Columbus.

    The opinion is on pacer and although it is 75 pages, since it’s an opinion, it is free.

  • NMC

    I’ve posted the opinion, along with the two Miss. Sup. Ct. opinions (both by Justice Smith) in the most recent post on the blog.

  • gottabe

    Thanks JaneT; so judicial performance would have jurisdiction if they receive a complaint against hizzhonor I would think.

  • @ those who think this will be swept under the Kitchen rug. The first post on this thread is from a 60 Minutes address. They will take this and paint us like a bunch of GOP fools. It is a set up to make North MS look like redneck heaven and it could easily affect the MS-01 congressional race. I don’t see how to get out ahead of this and try to minimize it’s impact.

  • hatfield

    Who can file a complaint against the liar Judge with the Judicial Performance Committee? Does it have to be a party involved with the Hodge’s case?

    This is the kind of thing that needs to be investigated. I don’t care how bad it makes North Mississippi look. Judge Kitchens should step down, but with his ego I doubt it will ever cross his mind. Has any reporter tried to get a comment out of Judge Kitchens? I bet he has a really long explanation of how he did nothing wrong.

    Thank God for judges like Judge Mills!

  • Ben

    To Thomas Lynch: I can think of few things better than having a thoughtful presentation of Judge Kitchens’s actions reported on a national tv show such as 60 Minutes.

    That’s why I posted the show’s contact information.

    This is a big story. A very big story. Or ought to be a big story: It documents authoritatively and cogently yet another deficiency in the capital punishment processes as they are applied in Mississippi.

    I believe (or at least want to believe) that even the most ardent supporters of capital punishment will insist on procedural overrides and controls that prevent the kinds of debased and immoral actions that were exposed by Judge Mills’s opinion.

    What Allgood and Kitchens did is un-American. It was a lynching. It was one more lynching in what has emerged as a pattern of prosecutorial-judicial malfeasance … in my opinion. I believe a good prosecutor could establish a conspiracy between the two to deprive the defendant of his civil rights. I believe this case should be held up to national exposure and public debate to help ensure that other Allgods and Kitchens across the nation don’t jam up other defendants.

    This case isn’t going to paint us like a bunch of GOP fools, as you apparently fear. That was accomplished years and years ago and we usually freshen the stain at every turn.

    Nor is it a set up to make North MS look like redneck heaven….. I have no idea what redneck heaven may look like, but if it admits elected judicial-branch officials who conspire to obtain a death sentence against a criminal defendant, then I’ll take my chances in redneck hell.

    It is an egregious miscarriage of “justice,” such as it is, in Mississippi’s 16th Circuit Court District. That’s what it is. It is yet another major black eye for our state’s court system. That’s what it is. It is a clarion call for state and federal grand juries to investigate the facts and to return such bills as they may find appropriate. That’s what it is. It’s one more petition for Mississippi to step out of the 19th Century and to join the rest of the nation in the 21st … the 20th Century is over and done and we blew that one.

  • MB

    Thanks, Ben. I agree with your comments absolutely (as I almost always do). Illegal actions by those elected or appointed to protect the people and uphold our laws should be brought to light and punished appropriately. I hope someone with standing to do so makes sure the Judicial Performance Committee is aware of this.

  • JaneT

    I don’t see how the JPC could be unaware of it. Whether they do something about it is a different matter. I mean, anyone here could easily e-mail them Mills’ opinion at mailbox@judperf.state.ms.us.

    IF it’s anything like the Bar Disciplinary procedures, an actual complaint doesn’t have to be filed, it just has to be brought to their attention. But I don’t know whether the process is the same with the JPC.

  • Lowndescoiscorrupt

    I know nothing about this particular case but, can tell you about countless others! There is absolutely NOTHING fair about Kitchens! I know for an absolute FACT that he has not only intimidated the jury but, on numerous occassions, left his bench to take time to try and persuade the jury by disclosing “so called facts” concerning another pending case against the defendant that had not yet gone to trial! What is fair about that? Not only that…the investigator was caught “RED”-HANDED in a BALL FACE LIE ON THE STAND…OPEN PERJURY AT IT’S FINEST!! Do you think the case was dismissed?? Heck No!! Lowndes County is full of these type people but, you better know that the truth shall prevail and every lie shall be uncovered!! I say REOPEN EVERY CASE!! There’s no telling how many people have been convicted of crimes they didn’t commit or didn’t stand a chance at having a fair trial.

  • JaneT

    The Sun Herald is reporting that Jim Hood plans to appeal Mills’ ruling. Given the quality of the lawyers in the criminal section of the AG’s office, I’m thinking that’s not much of a threat.

  • Given the quality of the lawyers in the criminal section of the AG’s office, I’m thinking that’s not much of a threat.

    But they will have a receptive audience in the Fifth Circuit. It’s continually amazing what two or three judges there will find “harmless error.”

  • JaneT

    Very true. I don’t know why criminal defendants even bother filing appeals to the 5th Circuit. I guess it’s a case of hope over experience.

    I filed a PCR in the MSCT and they ordered the AG to respond. The AG’s office just blew it off and the next thing I know ( amonth after the response was due), I get an order granting them an extension for time. They never filed an extension for time. Apparently it was the Court’s polite way of telling them they needed to file a response. They needn’t have bothered because the response was a piece of crap.

  • Crispin Garcia

    I read the opinion and it’s very well written. I can assure you Judge Mills’ findings of fact regarding the perjury and ineffective assistance of counsel claims won’t be disturbed lightly by the Fifth Circuit. Also, the legal conclusions he drew from those factual findings are not the least bit controversial.

  • why

    why are all the local papers where the judge sits only publishing the overturning of the appeal and not making the headline the part where a sitting judge fasley testified under oath which should be the headline. Of course you gotta love the DA’s response the judge didnt say anyone lied but that they testified falsely. Funny thing is the Perjury statute doesnt mention the word lied it only mentions the word FALSE testimony. Which is what judge mills said judge kitchens did.

  • If he testified after he was a sitting judge, why would judicial performance have anything to do with a judge’s conduct outside his roll as a judge? Looks to me that this would be a matter for the state bar association to address. If the Bar took his license or disciplined him, then it looks to me as though that would be when judicial performance would get involved. I tend to agree that a person testifying falsely, if that is what happened, is pretty damned awful in a death case regardless of whether he intended to lie or just didn’t know what the truth was. I say “if” because hey, you never know for sure do you?

  • Anderson

    Juan, Judge Porteous is being impeached in the US Senate right now for pre-bench conduct. You may object to that, but it plainly isn’t out of bounds.

  • Crispin Garcia

    Juan Valdez @ 3:09 pm: The Code of Judicial Conduct applies to situations outside the actual performance of judicial duties. Cannon 2 specifically states, “A Judge Shall Avoid Impropriety and the Appearance of Impropriety in ALL Activities.” The commentary states, “[t]he prohibition against behaving with impropriety or the appearance of impropriety applies to both the professional and PERSONAL conduct of a judge.”

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