Attorney @ Blog

MSSC Throws It in Reverse

2010-07-30T13:43:00Z

Thursday's landmark decision in Rowland v. State, about which I blogged last night, is remarkable for at least one reason beyond its holding.

Of the five decisions announced on Thursday by the Mississippi Supreme Court, all five were reversals. I don't ever remember seeing that happen.

For Some Screw-Ups, Time Does Not Heal All Wounds

2010-07-29T23:09:00Z

If the Mississippi Supreme Court left any doubt after its April decision in Jackson v. State as to whether a post-conviction relief claim rooted in a fundamental constitutional right is immune from the UPCCRA's three-year time bar, then that mystery is gone now.

In a unanimous decision that overturned a Court of Appeals decision, the high court held today in Rowland v. State, No. 2008-CT-00731-SCT, that a petitioner never loses the right to attack collaterally a conviction resting on a denial of a fundamental constitutional right. The ruling clarifies precedent, cited by the Jackson Court, that had held that fundamental constitutional violations "may" be immune from the statute of limitations. For the first time, the Court confirmed on today that such violations not only may be immune but are immune.

The decision explicitly overruled a series of conflicting cases from years past and is, by any measure, a landmark ruling in the realm of post-conviction relief.

The View From the Top of the Waller Molehill

2010-07-29T22:55:00Z

If you don't mind reading between the lines, then Chief Justice Bill Waller's speech at the Neshoba County Fair on Thursday wasn't completely unenlightening.

Although Chief Justice Waller didn't come out and explicitly address the now-year-old rumors that he's considering a 2011 run for governor, he did begin his address by coyly telling the crowd, "I have an announcement to make!" Of course, then he launched into some joke about a talking dog (which, in all honesty, would have been pretty funny if it hadn't stood in for a potentially major political announcement).

But after the joke, he spent most of the rest of his time detailing the steps that he's taken to lighten the financial burden placed by the judiciary on the state budget. It wouldn't be hard at all to imagine such an account existing as part of an overarching theme of fiscal responsibility.

Additionally, Waller apparently told Paul Gallo this morning something about being committed full-time to being chief justice until "something else" comes along. That's about as full-throated as a non-denial denial can get.

Of course, whether that means that Chief Justice Waller is just dancing around a decision that he's already made is anyone's guess. My gut instinct is that he truly hasn't made a decision, but clearly, he's keeping his options open. And why not? Assuming that Waller would run as a Democrat, his current competition for the nomination would be a Delta lawyer and a mayor from southeast Mississippi...not pushovers, but not juggernauts, either. For a guy whose network and name recognition would allow him to raise money pretty quickly, entering the race now doesn't appear to have any discernible advantage over holding off until, say, February or March.

As I tell all my clients, there's never any telling what the members of the Supreme Court will do with any given question, and the best you can hope for while you wait is the solace that you have a legitimate chance. For now, as far as hopeful Democrats are concerned, that may be the best that they can hold on to, as well.

Tweeting from the Neshoba County Fair

2010-07-28T14:43:00Z

Regardless of what the Mississippi Supreme Court does on Thursday, I probably won't be able to look at it for at least a couple of hours after the 1:30 p.m. handdown, because I'll spend most of the day sweating profusely and collecting red dirt at the Neshoba County Fair.

I'll be livetweeting during most of the speeches at my Twitter feed, @willbardwell, but I might not be camped out until a few minutes before Chief Justice Bill Waller takes the stage at 10. Regardless, there almost certainly will be more than enough snark to go around, so if that's your thing, then follow and don't be shy.

No Rehearing on COA Insanity Case

2010-07-28T14:35:00Z

In a fairly slow day at the Mississippi Court of Appeals, the appellant's motion for rehearing in Keir Sanders v. State, a case of previous blogging fame, was denied.

Haley's Rule

2010-07-26T20:30:00Z

Rule No. 1 of Haley Barbour's Rules of Civil Procedure: "No one is allowed to sue a business. Except for me."

The Fine Line Between Adaptation and Anarchy

2010-07-26T16:18:00Z

At the risk of making a mountain out of a molehill, Chris Joyner's report in this morning's Clarion-Ledger -- which Tom Freeland recaps, if you want the Cliffsnotes version -- about the efforts of the Jackson City Council and the Fairview Inn to circumvent last year's Mississippi Supreme Court decision in Modak-Truran v. Johnson smacks of some of this state's worst moments.

One need not read far into the history books to remember an era when the commands of courts were followed or not based entirely on whether the parties liked the answer. And the ensuing loss of blood and faith occurred for few other reasons than the fact that government officials and the electorate served thereby put themselves above the law.

I'm not suggesting that the rise or fall of some prissy lunch stopover will determine whether Euclid Drive soon will lie under the drumbeat of rioters. But the outright indignance on display by the city council is no less unsettling. As any first-year law student can attest, "[i]t is emphatically the province and duty of the judicial department to say what the law is." And any government body that defies those announcements plainly violates the Constitution.

That's never permissible, and least of all when a fancy lunch is at stake.

"From JAG to Judge"

2010-07-25T20:13:00Z

Mike Blount has a good feature story in today's Hattiesburg American about Judge Virginia Carlton of the Court of Appeals, who notably took a leave of absence recently to fulfill duties in JAG-related appellate review of U.S. Army courts-martial.

A Bit of Good News for David Williams

2010-07-22T20:43:00Z

After a tough few years, David Williams got some potentially good news on Thursday. The Mississippi Supreme Court announced that, by a vote of 6-3, it had granted his petition for certiorari.

I've previously blogged about the case, but to refresh your memory, Williams was convicted of murder in September 2007 in the death of his girlfriend in Oxford. Williams argued at trial that his girlfriend had committed suicide, but the trial court refused to admit evidence of the decedent's depression or to instruct the jury on the lesser-included offense of assisted suicide. The Court of Appeals affirmed the conviction in December 2009 by a vote of 6-3 and denied rehearing in April.

Assuming its self-imposed deadline is kept, the Supreme Court will announce a decision in the case sometime before late January 2011.

On Certiorari, No Frown from Brown

2010-07-22T20:21:00Z

Congratulations are in order for my colleague, office mate, and occasional snarky blog critic David McCarty, who won a reversal of a murder conviction today at the Mississippi Supreme Court.

The Court ruled unanimously in Brown v. State, No. 2008-CT-00484-SCT, in an opinion written by Justice Carlson, that a defendant convicted of murder was entitled to a jury instruction on accidental shootings after he testified that the decedent had been killed during a struggle for a gun that just moments earlier had been pressed against the back of his head. In September 2009, the Court of Appeals held that Brown was not entitled to such an instruction because he received a jury instruction on the theory of self-defense. The Supreme Court rejected that conclusion today and held that the two theories are separate, and although they were somewhat contradictory, the defendant was entitled if he offered any evidence to support it.

Continuing Torts Venture Into Caves

2010-07-22T20:02:00Z

In the Mississippi Supreme Court's continuing effort to define the time-bar rules concerning survival and wrongful-death torts (Caves v. Yarbrough, anyone?), the justices held unanimously today that when a continuing tort gives rise to a survival action, the statute of limitations does not begin to run until the tort ends.

The Court's decision in Frederick v. Quorum Health Resources, Inc., No. 2007-CT-00465-SCT, reversed a 6-1 ruling from the Court of Appeals, which held in December 2009 that the statute of limitations for a claim of continuing nursing home abuse began to run on the date when the abuse began. In other words, so long as a nursing home undertook a course of negligence that took more than a year to kill Grandma, they could get away with it without fear of repercussion.

The Supreme Court reversed that ruling today -- and rightly so, in my view. A review of the Court of Appeals decision reveals that they viewed the underlying facts in a fundamentally different way; where the Supreme Court saw a continuing act of neglect, the Court of Appeals had seen just one act. That's a tough sell, though, for a pattern of conduct that involved daily actions.

In Banton, a Man's Yard is Not His Castle

2010-07-22T14:04:00Z

For a piece of legislation that passed with as much fanfare as it did, the castle doctrine has received precious little attention over the past three years at the Mississippi Supreme Court and Mississippi Court of Appeals. It's been mentioned a couple of times -- mostly in passing, as happened in Johnson v. State, 997 So. 2d 256, 260 n.2 (Miss. Ct. App. 2008) (Chandler, J.) -- but it hasn't gotten much substantive attention.

And even though I'm not aware of any castle doctrine-based reversals so far, Tuesday's Court of Appeals decision in Banton v. State, No. 2009-KA-00905-COA, is noteworthy for the degree of attention paid to the doctrine. In Banton, a man was shot and killed after being invited to the shooter's home and later refusing to leave. Ultimately, the Court rejected the appellant's argument because he hadn't produced any evidence that the victim either forcibly entered the property or intended to commit violence thereon.

Still, the Court leaves the door open pretty wide for the castle doctrine (as, I suppose, it must). The Court affirmed Banton's conviction only after finding evidence of neither a forcible, unlawful entry nor an intent to commit an assault or any other crime on the property (aside from, perhaps, trespassing, which is a misdemeanor and therefore does not trigger the castle doctrine). Any evidence thereof, presumably, would at least have entitled Banton to a jury instruction, if not a judgment of acquittal.

I would've liked the Court to have given some attention to whether the castle doctrine is triggered by unlawful entry upon property or merely the dwelling (I can't tell whether Section 97-3-15(1)(e)'s reference to "the immediate premises thereof" applies only to places of employment or to all of the delineated in the subsection, although I'm leaning toward the latter), but in truth, the facts of the case didn't really allow the judges to proceed that far into the inquiry.

Great Moments in Mississippi Legal Writing

2010-07-19T15:43:00Z

"[O]nce again, the trial court has foundered on the rock of failing to give a lesser included offense instruction." Perry v. State, 637 So. 2d 871, 872 (Miss. 1994) (Banks, J.).

Ha!

Dicta: Women, Barbour, and Arguments

2010-07-19T15:26:00Z

A handful of news items deserve attention this Monday morning.

First, and most notably, Emily Wagster-Pettus of the Associated Press analyzes the continuing absence of women in elected state politics. Most noteworthy for this blog's purposes is her mention of the Mississippi Supreme Court and Court of Appeals, which are home to just one and two women, respectively.

Next, condemned convict Joseph Burns apparently plans to seek clemency from Gov. Haley Barbour after the Mississippi Supreme Court denied his request to seek a mental evaluation. Given that Burns is only a murderer, rather than a murderer who worked at the Governor's Mansion, I doubt that Barbour will be receptive.

And finally, if you want to do a little homework, then read up on last year's Delker v. State decision from the Court of Appeals. The case, which focused on a police officer's authority to stop traffic violators outside the officer's jurisdiction, appears before the Supreme Court on Tuesday afternoon for oral arguments.

Also, I've renamed this blog's occasional roundup of news items, which henceforth shall be called "Dicta." May the rest of my week be equally self-satisfying.

Twitter, et al. Soon Off-Limits to Jurors

2010-07-19T14:49:00Z

Jimmie Gates of The Clarion-Ledger reports this morning that the state judiciary's powers-that-be are looking into the possibility of creating a standard jury instruction that would forbid jurors to visit social media during trials. The account spends quite a bit of time with Presiding Justice George Carlson of the Mississippi Supreme Court, who sounds pretty bound and determined (and rightly so) to update the instructions so that they comport with the reality of 21st century news gathering.

Here's an excerpt:

Mississippi doesn't have a model jury instruction yet, but a committee is studying it. The 22-member Mississippi Model Jury Instruction Commission is studying a social media instruction as part of an overall update, state Supreme Court Justice George Carlson Jr., who also heads the commission, said.

The Supreme Court created the current instructions in an order entered Dec. 30, 2008. Carlson said the commission had its first meeting on social media in March 2009.

. . .

"It would be totally unfair for them (jurors) to go out during a break and gather information secretly," Carlson said.

Carlson expects new model jury instructions to be completed by next year.

Wiseman: Waller Among Notable Guv Potentials

2010-07-18T17:06:00Z

Prof. Marty Wiseman of the Stennis Institute of Government at Mississippi State University writes in today's Sun Herald that a trio of potential but as of yet unannounced candidates might shake up next year's gubernatorial election -- and one of Prof. Wiseman's subjects is Chief Justice Bill Waller. The Chief's entry into the race could, in Prof. Wiseman's words, "send tremors through both sides of the ballot."

Prof. Wiseman also mentions the possibility, earlier offered by Sid Salter of The Clarion-Ledger, that David Waide, president of Mississippi Farm Bureau, might enter the race as an independent. There are probably a dozen ways to read a three-way race between, say, Waller running as a Democrat against an independent and whichever lunatic the Republicans nominate, but it seems to me that the increased competition would only increase the value of the votes Waller surely would carry from the National Guard and African-American communities.

Even finishing with a leading minority of votes wouldn't deliver victory to Waller, as Prof. Wiseman notes. But it would give his candidacy a heck of a lot of credibility if the decision rested with the Legislature. After all, it wouldn't say much about democracy if any given candidate drew more votes than any other but ultimately was rejected by a roomful of politicians.

Of course, all that assumes that Waller runs. And at this point, that remains pure speculation.

Irby's Recusal Motion a Preview of Appeal's Hopes?

2010-07-17T15:26:00Z

An interesting development at the Mississippi Supreme Court caught the attention last night of fellow blogger-at-arms Tom Freeland -- who, in turn, noticed the work of a Jackson blogger so talented that he has surpassed the necessity of using his own name -- in which a three-justice panel has ordered Hinds County Circuit Judge Tommy Green to explain why she should not be barred from overseeing further proceedings involving Karen Irby.

Tom's inquiries are the most immediately pressing, but from a broader standpoint, the Court's disposition of Irby's motion could provide a window into the potential for her appeal on the merits. If the Court ultimately orders Judge Green to step aside, then under precedent governing mandatory recusals, it would have determined that "a reasonable person, knowing all the circumstances, would harbor doubts about [her] impartiality." Collins v. Joshi, 611 So. 2d 898 (Miss. 1992).

And presumably, if the Supreme Court finds that Judge Green's impartiality is doubtful at this point in the proceedings, then it also would be inclined to hold that her impartiality was sufficiently doubtful at the time she sentenced Irby -- which, obviously, would bode well for Irby's appeal.

Something to watch, for sure.

Parsing Wicker's Objections to Elena Kagan

2010-07-17T14:57:00Z

This week brought the stunning news, via the equally shocked Y'all Politics, that Sen. Roger Wicker would not support Supreme Court nominee Elena Kagan when her matter comes before the full U.S. Senate. And although Sen. Wicker certainly is free to advise and consent according to his own discretion, the reasons offered for his opposition carry little water upon inspection.

Sen. Wicker's unease with Kagan's view of the Second Amendment is grounded almost entirely in a memo that she wrote to Justice Marshall as his clerk, in which she said that she was "not sympathetic" with the position of an opponent to a firearms regulation. According to Wicker, that demonstrated that (the 20-something-year-old) Kagan relied on her personal views rather than, in Wicker's words, "rooting her analysis in law."

To call that objection "trivial" would be a kind understatement. Courts refer to their own sympathies all the time, regardless of whether they ultimately feel guided to follow or oppose them. For example, the Mississippi Supreme Court addressed an appellant's argument in 1992 by writing, "We are sympathetic but not persuaded." Patterson v. State, 594 So. 2d 606, 608 (Miss. 1992). None less than Judge Richard Posner himself have recognized that emotional reactions play a role in pragmatic jurisprudence.

But then, after lashing the nominee for what he says is an eagerness to make decisions outside the constraints of caselaw, Sen. Wicker goes on to take issue with memos written to President Clinton regarding the practice of partial-birth abortion, in which Kagan indicated, according to Wicker, that she "would find the prohibition of this act to be unconstitutional." But the U.S. Supreme Court did just that in Stenberg v. Carhart in 2000, which -- subject to the distinction of 2007's Gonzales v. Carhart, of course -- imposes a percedential burden on any Supreme Court justice.

In other words, Wicker's subjection to precedent begins and ends with decisions he likes, and ultimately, he opposes Kagan because her view of caselaw is not governed by the same arbitrariness.

Birkhead MFR's Wait Approaches 500 Days

2010-07-12T15:43:00Z

In baseball, membership in "the 500 club" will get you in the Hall of Fame, and if there were a comparable museum for criminal appeals, then it might do the same for Richard Birkhead.

By the time the Mississippi Supreme Court returns from its writing break next week, Birkhead v. State -- the delay in which drew attention from blogging brother in arms Matt Eichelberger last week -- will have passed an ignominious milestone. The next day on which the Court could rule on Birkhead's motion for rehearing is Thursday, July 22 -- which will be a whopping five hundred four days after the appellant filed the motion.

At that point, little more than a month will remain before the Court will have used twice as much time on rehearing as it would have been allowed in deciding Birkhead's case on the merits.

There's a New Marshal in Town

2010-07-12T15:21:00Z

One thing that the Supreme Court has decided during its writing break -- probably earlier, actually, given the obscene delays with which The Clarion-Ledger typically reports on the Court's goings-on -- is the hiring of a new marshal. Stephen Market, a former deputy U.S. marshal for the Southern District of Mississippi, starts today in replacement of A.W. Grubbs, a longtime presence at the Gartin Building and a character of the highest degree.