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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Early Summer Breakfast

Summer fruit

One of my favorite breakfasts is blueberries from my yard, peaches from Cherry Creek Orchard in Pontotoc, blackberries from another grower at MidTown Farmer’s Market (sorry I didn’t get the name), cantaloupes (these are from Lucedale because locals aren’t in yet, which seems a little late. I’ve learned to time all these things that go together), a little demara sugar, some Greek yogurt, and some Brown Family Dairy Farm milk.  This goes on for perhaps a little under a month.

Mississippi Supreme Court’s opinion in Carrothers v. State: Important case on experts & reliability of eyewitnesses

On Thursday, the Mississippi Supreme Court released an important decision in Carothers v. Statethe core of which involved the admissibility of an expert witness the defendant offered on the science of the unreliability of eyewitness identification testimony.  The majority opinion, by Chandler, rejects admission largely on the theory that the expert did not observe the eyewitness testify, and based his opinions on erroneous facts.  In concurrence (joined in part by a couple of others), Justice Randolph expands on that part of the opinion, and suggests he’d never support letting the testimony into evidence in any event.

The trial judge bases for excluding the testimony seem very thin– that the testimony could confuse the jury, and that the opinions had some facts wrong.  I’m not sure confusing jurors is such a bad thing, but, then, perhaps it’s better not to disturb their troubled sleep.

Justice Coleman has a dissent that I really like.  The Chandler opinion really reads like cross-examination bullets and not a basis to exclude the evidence, and Justice Coleman focuses in on that actual Daubert standard and to my eye gets it right.   He had three other votes.

Justice Coleman has been an intelligent and independent justice on the court, to my eyes.  I have been pleased to read his opinions as his time on the court has gone along.

There’s also a Batson issue that Justices Chandler and Randolph don’t see exactly the same but resolve the same, and Justice King (joined by Kitchens) opines requires reversal.

One annoying feature:  Two justices join in Randolph’s opinion”in part,” and two join in Justice Coleman’s opinion “in part” but don’t say what part.  With Justice Randolph, one case guess whether it’s the expert or the Batson part (and since Justice Chandler wrote the majority opinion while joining Justice Randolph in part, I suppose one could draw a conclusion by comparison), but with Justice Coleman’s, it’s really hard to say.  It would only take one sentence to clarify, folks!  And this one matters in discerning just how close expert opinions about eyewitnesses may be to being admitted.

Maybe it’s just that all the opinions total 139 pages and everyone (me included– large parts I’ve just skimmed) got overwhelmed.

Update: Reading further into the decision list, I hit a case interpreting the state’s sex offender registry statute.  The vote turns up 4 to affirm (registration should occur even though prosecution was dismissed in California because registration in California was required) 4 to reverse (the Mississippi registration statute specifically says no registration where the prosecution was dismissed, and this one was, although after probation), with Justice Coleman the fifth vote for the majority, in which he agrees with the result but joins in part.  But does not say what part! Rendering the affirming opinion a plurality with no explanation! That’s five different justices concurring in part with no explanation on one decision list! Please stop!

Shall Not Stand

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Perhaps I’m not being sufficiently creative in imagining what challenges McDaniel may bring

May need to think more out-of-the-box.

h/t Chris Offutt.

Let’s take a look at the old book: What the Election Code actually says

Chapter 15 of title 23 of the Mississippi Code covers election contests, and has some pretty concrete answers to some of the things folks (including me) have been saying. Just for instance, I said from memory that there was no deadline for the contest, forgetting that this had been changed in 2012; there’s a deadline now. Here’s some things from the code:

Were there is an election covering more than one county, the challenge in the first instance is with the party’s state executive committee. A challenge must be filed there, reciting the grounds for the contest. If four members of the committee demand it, the chairman shall issue “his fiat” to the appropriate counties where issues are raised, and those are to issue findings and return a report. This is in Miss. Code § 23-15-923.  If there is a deadline for filing this petition, I missed it.

I think this and other provisions in the code talking about state-wide challenges strongly imply a state-wide remedy, although the code is not explicit.

After that petition is filed and the commission either fails to meet or fails to promptly to give the relief required, the contestant can go to any of the counties challenged (big caveat here, noted below) and file a sworn petition challenging the election.  The petition must be filed within ten days after the contest was filed with the election committee.  “In no event shall a prayer for relief be filed in any court other than the appropriate circuit court as authorized in this section.”  This is Miss. Code § 23-15-927.  It seems to me to clearly state, for instance, that if the challenge does not involve votes in Hinds County, the challenge must not be filed there.

I cannot imagine how the state/county process described in Miss. Code § 23-15-923 can play out in ten days, so I’m guessing that a state challenge will proceed from the state committee not completing its job.

Miss. Code § 23-15-927 requires that the court petition may not be filed unless it bears the certificate of 2 practicing attorneys stating they have each made independent investigation of the protest and opine that the relief should be granted.   This provision has long held to be jurisdictional, as has the requirement the petition be sworn.

Here’s a quaint one the always-up-to-date Mississippi legislature left in place when it amended this specific statute in 2012:  When a petition is filed, the circuit cleark “shall immediately, by registered letter or by telegraph or telephone or personally, notify the Chief Justice of the Supreme Court” so a judge can be appointed to hear the case.  Miss. Code § 23-15-929.

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Miss. Code § 23-15-931 sets for the procedure for the trial of the contest.  It provides that if the petition alleges “wrong or irregularity” occurring only “within the state committee” the suit must be filed “in the circuit or chancery court of Hinds County.”

On this point, I am pretty confused.  If there are no irregularities within the Hinds County vote in a state election, I read Miss. Code § 23-15-927 to require the challenge be in one of the counties where there were irregularities.  The code does not imply a challenge based upon something the state committee did as opposed to challenge the votes and the voting process.  Further, Miss. Code § 23-15-927 requires that the petition be filed in the circuit court.  How did Hinds chancery get into the picture?

I’m assuming that any McDaniel challenge would have to take on Hinds County, but, if not, I’d be at an utter loss where to file this thing.  I’d ignore the possibility of Hinds Chancery (who wants to resolve that riddle if you don’t have to?) but other than that would be at sea.

 

Well, duh: Here’s some more reasons there can’t be an elections challenge

Update: I’ve somewhat changed my view about whether the challenge proceeds county-by-county.  Sort of yes, sort of no, but I think the remedy is a statewide redo.

Brian Martin points out one in comments: Election contests proceed county-by-county. You go to court in one county, make your proof in hopes to get one of two remedies (a redo or a change of result, depending on what you prove). The remedy is not state-wide, and (without checking) I don’t think there are provisions for such a thing. So a win would be Pyrrhic– you’d get one county revote for each county win, and I’ll bet there’s no way you could work that so you’d get enough counties overturned to make a difference in the ultimate result.

A second thing occurred to me describing this to an election lawyer: The affidavits I described (a voter saying that he or she voted with a present intent not to support the nominee in the general) might suffice for a prima facie case, but you can rest assured that Barbour’s lawyers (and probably those for the county executive committee) will object to their admission, that the voter must be called as a witness for cross-examination. So the challenger would have to subpoena each and every one to be sure this would work.

I don’t think so.

It seems to me reading between the lines that they may be trying to work up a simpler challenge: That almost 7K people voted in the run-off who voted in the Democratic primary. If they prove that, it would work, I guess, but I’m betting against there being that many. I guess he can throw in the inevitable voters who voted with some sort of mistake involved, but those are pretty serious work to identify.

If his challenge amounts to stomping his feet and claiming the Cochran campaign invited fraud but he doesn’t have to prove the extent to which it occurred, he is wasting everyone’s time and money pretty close to the point of sanctions, in my opinion.

Why some comments don’t appear

I have only a few criteria for letting a comment through. One is that I require a legitimate email address. I can’t always tell, but if at a glance, the email address looks bogus, I don’t let the comment through. Another is that I don’t allow sock-puppetry if I can prevent it. Thus, anyone who already has a comment-name is generally prevented from changing names. On relatively rare occasions, I have allowed a switch on request (and think that I’ve alerted people to the change). I particularly detest blogs that allow anonymous or sock-puppet comments, and finally end up with a feeling that the blog owner is talking to his or herself in order to create the bogus impression of a discussion.

Occasionally, I don’t catch the dual-name problem or bogus email until the comment comes through, but I attempt to enforce it as described.

These two criterion have caused me to not approve a handful of comments recently, which is what caused me to make this post.

General commenting guidelines are available here.

Arrest Warrant Pecan Pie

Grandmothers tended to be thrifty, one result being recipes saved on all kinds of scraps of paper.  My grandmother tended to favor things the size of index cards, or that could be readily folded, because she kept hers in a small index box.

Taylor Davidson’s great-grandfather Willy S. Tatum was a Justice of the Peace in Taylor, Mississippi.  Just as my grandmother did, his wife used what was at hand for noting down recipes.  So here’s her recipe for “Pecan Pies,” written out on a form for an arrest warrant.

arrest warrant pecan pie

What would a reality-based elections contest cost?

In a prior post, I explained what I thought could be the basis of an election law contest, and concluded that McDaniel would need roughly 6400 affidavits (leaving almost no margin of error) from people who voted in the run-off that said, at a minimum, “I voted in the run-off and do not intend to vote for the nominee of the party in the general.”  Of course, they would have to be from people who actually voted.  If you got that, what you’d get is…

drum roll…

A redo!  But if your affidavit said (for all 6400!) “I voted for Thad Cochran,” a harder affidavit to get, you might get McDaniel declared the winner.

So what would this task cost?  And, given that the national Tea folk have conceded and gone home, is that money likely to come from anywhere?  Here’s some guestimates on my part:

With all the national Tea-people conceding, I don’t see how McD finances a legal fight that requires 6K+ affidavits.

if you have to talk to 10 people (remember, they aren’t your friends) to get one affidavit, that’s 60k.  Your crew needs to be ready to get the affidavit the moment they find a willing signor, which means mobile printer and Mississippi notary.  You need a good updated poll list that shows accurately who voted yesterday.

If you say, “talk to 3 people an hour,” just getting the affidavits is 20K hours.  That’s pretty high level of contact.  Have to do it in a very few weeks (no deadline for contests! must be in a reasonable time.  Can’t start “GO” until after the committees meet, so you probably realistically have 4 weeks maybe 6.  So say six).  3.3K hours a week.  over 400 a day.  At 10 hours a day, you only need 40 crews.  Of two people.  With vehicles and support.  Just to get the affidavits.  Working full time for 6 weeks.

So you only need, what, $5M just to get the affidavits?  And a crew of 80 with coordinators from somewhere?  Maybe some volunteers would cut the price some, but…

Of course, there’s an alternative strategy of going into court and arguing that what the founding fathers said in the Constitution means you win, because the Bible says voters can’t crossover vote, all according to the voices buzzing in your head.  Wait, what judge?  You’re saying that, like education, the Constitution doesn’t mention political parties?

Write Chris in! Write Chris in!

The title is what the crowd was yelling at Chris McDaniel’s non-concession speech last night.

I know that the McDaniel people don’t care about actual facts like the laws in the statute books and are much more likely to listen to… I’m not sure.  The voices in their heads.  And maybe I should keep this quiet, but…  There’s this:

There shall be left on each ballot one (1) blank space under the title of each officeto be voted for, and in the event of the death, resignation, withdrawal or removal of any candidate whose name shallhave been printed on the official ballot, the name of the candidate duly substituted in the place of such candidatemay be written in such blank space by the voter.

Miss. Code. Ann. § 23-15-365 (1).
The Mississippi Supreme Court long ago construed this statute to require that write in votes are illegal except where a candidate has died between the printing of general election ballots and the general election.  So, yes! Come November and the general election, NMissCommentor officially endorses the strategy Write Chris In!
And I will note here that I hope and pray my analysis doesn’t embolden some McDaniel dead-ender with a gun.