Attorney @ Blog

COA Officially Finished With Cory Maye

Bardwell — Wed, 10 Mar 2010 16:24:00 GMT

The State of Mississippi has until March 23 to file its petition for certiorari with the state Supreme Court after the Court of Appeals denied its Motion for Rehearing in November's noteworthy Maye v. State case.

Sanders and Sanity

Bardwell — Wed, 10 Mar 2010 16:19:00 GMT

In what by any fair measure qualifies as a bizarre case, the Mississippi Court of Appeals on Tuesday affirmed the murder conviction of a Northeast Mississippi man who committed his crime nearly 25 years ago.

The AP has a brief rundown on the facts of Sanders v. State, but the legal rubber met the judicial road on the issue of insanity -- in particular, whether the defendant had adequately proven his innocence by reason of insanity. For Judge Ishee, joined in dissent by Chief Judge King and Judge Barnes, the elephant in the room is the fact that the jury inquired of the trial judge during its deliberations as to whether an insanity finding could result eventually in Sanders' release into free society. Judge Ishee empathizes with the question, but as he rightly points out, that's not a valid piece of the insanity inquiry and strongly indicates that the jurors reached their decision without full reliance on the case's facts.

For its part, the majority points out that the jury's question, standing alone, doesn't prove that they based their verdict out of fear rather than fact. Such a conclusion, Judge Roberts' majority opinion contends, necessarily requires speculation.

It's a tough case, but if nothing else, it's a good refresher on the M'Naughton rule.

Free Legal Advice

Bardwell — Tue, 09 Mar 2010 20:41:00 GMT

A quick practice pointer for my fellow appellate hounds out there.

When you file your Notice of Appeal with the Mississippi Supreme Court, do whatever you can do to keep your client's alias from showing up on the filings -- especially if his alias is "Two Pistols" and he stands convicted of armed robbery.

Just a thought.

MSSC Justices Out Rubbing Elbows Today

Bardwell — Tue, 09 Mar 2010 15:52:00 GMT

For a group with just one member up for re-election in November, the Mississippi Supreme Court sure is getting around today.

The Mississippi College chapter of MAJ will be hosting something called the Libel Show tonight at 8 at Hal and Mal's. I can't find anything about it online outside of Facebook, but purportedly, it involves skits and a silent auction that benefits Camp Rainbow and the Mississippi's Toughest Kids Foundation. Justice Kitchens' appearance on the lineup and the promise of a story or two make the $5 admission fee grossly underappraised.

If you're in Senatobia today -- of course, if you are, then you're probably not connected to the Internet -- then the Tate County Economic Development Foundation sounds like a fun time. Justice Lamar will be speaking, and it sounds like they'll be serving some form of sustenance. Dinner and a Supreme Court justice; sounds like a rockin' date to me.

So, no reason to stay in tonight. I mean, if you've seen one episode of "The Biggest Loser," then you've seen 'em all.

Kennedy Through the Lens of Texas v. Johnson

Bardwell — Tue, 09 Mar 2010 15:31:00 GMT

To follow up on yesterday's post regarding Snyder v. Phelps, it occurs to me that, in what surely is the first such episode in recent Supreme Court history, the key to the eventual decision is Justice Kennedy's vote.

Justice Kennedy has changed a lot over the past two decades (Jeffrey Toobin's "The Nine" does a great job of documenting Kennedy's jurisprudential psychology, if that sort of thing interests you), but the best insight into his thoughts on subject matter like this might be his concurring opinion in Texas v. Johnson, 491 U.S. 397 (1989), the noted flag burning case. In words far more poignant than anything I could cobble together here, Kennedy famously conceded great uneasiness with both the Court's judgment and the respondent himself but ultimately was compelled to side with the First Amendment over his personal grumblings. It's not hard to imagine something like this bubbling to the surface of a majority opinion, if Kennedy can find four colleagues who share his view.

It's worth noting that Kennedy is one of three members of the Johnson Court who remain on the bench; the other two are Justice Scalia, who concurred, and Justice Stevens, who dissented. Stevens has conceded in recent years that he probably should have concurred with the Johnson majority, but in truth, he very well might not be on the bench when the Court hands down Snyder v. Phelps next year.

Yes, But Will They Permit Blown-Up Visual Exhibits?

Bardwell — Mon, 08 Mar 2010 18:24:00 GMT

Speaking of the liberty interests of free men and women, the Mississippi Supreme Court will hear oral arguments later this month to consider our God-given right to drink canned beer while shirtlessly floating down the Bogue Chitto in an inner tube, or so says The Clarion-Ledger.

I'm not sure what the legal issues at stake are -- the paper seems to imply it's a takings claim -- but that'll be one to pay attention to. What remains of my family's Pike County enclave is sure to be watching with greater interest than one could be proud of.

I've Got a Bad Feeling About This

Bardwell — Mon, 08 Mar 2010 18:14:00 GMT

Color me concerned regarding the U.S. Supreme Court's decision to grant certiorari in the case of that group of lunatics who travel the country to protest at soldiers' funerals.

Don't get me wrong. The fools are nothing short of the scum of the earth, and they deserve nothing but the heartiest of beat-downs at the hands of the meanest, drunkest rednecks that America can find.

Having said that, they've got a First Amendment just like the rest of us. And the rest of us don't have to like what they do with their freedom of speech -- no reasonable person of whom I know does -- but if we start cutting back on their right to stand up and say what they want, no matter how asinine, then we start giving away our own right to speak our minds.

Suffice it to say that if the Court turns out to be willing to go to more trouble to protect the First Amendment interests of corporations than those of free men and women, then we're going to have a real problem on our hands.

MSSC Apparently Wants More Detailed Proffers

Bardwell — Fri, 05 Mar 2010 15:53:00 GMT

When appearing at the Mississippi Supreme Court to appeal a trial judge's refusal to allow expert testimony, the lesson of Abernathy v. State is clear: you've got to make 'em a proffer they can't refuse.

The justices ruled 5-4 on Thursday that a defendant seeking to offer expert medical testimony about his accuser's medical history had failed to make a sufficient proffer, despite the fact that defense counsel stated in open court that the expert would testify that migraine patients like the accuser sometimes suffer delusional episodes. The majority, whose opinion Justice Pierce wrote, remained unsatisfied that the defense had put enough detail into the record to allow it to make a decision.

Joined by three others, Justice Graves dissented with a persuasive analysis of Rule 103 and relevant caselaw; there's no need for me to copy his homework, but suffice it to say that, based at least on traditional treatment, he has the better end of the argument. Proffers are inherently informal creatures, and the only thing that Abernathy's attorney could have done to create a more detailed record would have been to put the expert on the stand -- a tactic that certainly will waste many a trial judge's time but which seems the only safe route from now on, if the Court is going to treat proffers to such exacting scrutiny.

Where There's Smoke, Sometimes There's Just Smoke

Bardwell — Thu, 04 Mar 2010 21:22:00 GMT

By the time I caught wind of the holy-cow-John-Roberts-is-about-to-resign rumor today, it already had been defused as a major gaffe in the history of Internet journalism. But for those out there who cling to their suspicion of the emphatic and swift rebuke...don't. The kids at Above the Law appear to have tracked the rumor back to a joke gone wrong at Georgetown's law school.

I had a rough 1L year, but I didn't start any rumor firestorms about the most powerful judge on Earth, either.

MCJP v. DeLaugher? Make That MCJP v. MSSC

Bardwell — Thu, 04 Mar 2010 21:13:00 GMT

If there's been a question of law in Mississippi over the past 10 years that one would think the Supreme Court could reach a unanimous decision on, then the safe money would have been the issue of whether disgraced Judge Bobby DeLaughter should be removed from office.

In Mississippi Commission on Judicial Performance v. DeLaughter, seven members of the Court agreed today that DeLaughter's tenure should be given the post-resignation kibosh, but only over the vigorous dissents of Chief Justice Waller and Justice Dickinson. In fairness, the dispute does not lie with whether DeLaughter was a bad boy; everyone agrees that he was. The struggle, rather, relates to the relationship between the Court and the Commission.

Specifically, the Court wrestled with whether it could remove DeLaughter from the bench (1.) after the Commission withdrew its request when DeLaughter agreed never to seek election again, and (2.) after DeLaughter had, after all, long since resigned.

Led by Justice Graves' majority opinion, the bulk of the Court agreed that it did enjoy that authority. The state constitution, Justice Graves wrote, grants ultimate authority over judicial discipline to the Court, despite the constitutional imposition of the MCJP into the framework.

In dissent, Chief Justice Waller contended that Section 177A of the state constitution empowers the justices to act only upon recommendation of the Commission. Justice Dickinson declined to join the majority for an even more practical reason: DeLaughter is long gone, and any expulsion at this point is, at best, symbolic.

As far as MCJP cases go, it's a fascinating opinion. These things are usually pretty mundane and frequently announced with unanimity. And even though the issue of after-the-fact expulsions has received a fair amount of treatment from the Court recently, this case represents that discussion's most animated moment. And to top it all off, nobody involved has a bad argument.

Ultimately, it comes down to whether you believe that the Court has an inherent authority to sanction judges in lower courts, regardless of the Commission's position on the matter. Justice Graves and six of his colleagues concluded that idea a contrary conclusion (edit) "borders on absurdity."

For Posner Fans at MSSC, Been a Long Time

Bardwell — Wed, 03 Mar 2010 16:47:00 GMT

For those of you appellate nerds out there with undying interest in all things related to Judge Richard Posner and the Mississippi Supreme Court -- in other words, probably just me -- a bit of trivia. Posner, one of the most influential and oft-cited legal scholars in American history, has not been cited by name by the Mississippi Supreme Court for nearly 18 years. His last shout-out appeared in McGowan v. Mississippi State Oil & Gas Board, 604 So. 2d 312 (Miss. 1992), and even then only in a footnote.

What's a man gotta do to get some love for law and economics, anyway?

UM Law Taking Another Semester

Bardwell — Wed, 03 Mar 2010 16:34:00 GMT

My beloved alma mater, the University of Mississippi School of Law, true to the form of many an Ole Miss undergrad, will need an extra semester before moving on.

The law school announced on Tuesday that the Mid-South rainy season has delayed construction to the tune of more than two months, meaning that the new, state-of-the-art facility will begin shaping the minds of little lawyers-to-be in Spring 2011 rather than Fall 2010. I haven't been by to see the new digs yet, but supposedly, the exterior of the building is presentable enough to drive by and gawk at.

Now that they allow liquor on campus, all of this seems like a very good excuse for a holiday-themed fundraising cocktail party in, say, December or so. Just a thought.

A Broken Record at the Court of Appeals

Bardwell — Wed, 03 Mar 2010 15:54:00 GMT

Among the results of another busy Tuesday at the Mississippi Court of Appeals was another decision that is, at the very least, unusual.

In Spearman v. State, the Court ruled 8-1 that the trial court had not erred by proceeding to closing arguments without allowing the defendant to testify, despite the fact that the record reflected the defendant's clear and repeated desire to testify. Both the Sixth Amendment and the Mississippi Constitution guarantee the right to testify in one's own defense, and with repeated interjections such as "I'll take the stand" and "I'm going to testify," one would think at that Mr. Spearman had invoked that right.

Nevertheless, after the colloquy between the trial judge and Mr. Spearman, the court brought the jury back in, permitted defense counsel to rest its case, and proceeded to dismiss the jurors for lunch ahead of jury instructions -- all as if Spearman had not actually expressed a desire to testify. That led the Court of Appeals, in a majority opinion written by Judge Griffis and dissented from by only Judge Irving, to conclude that Mr. Spearman had, in fact, declined to testify -- in other words, that the trial transcript was mistaken.

Now, from a practical point of view, I can understand the Court's reasoning. To read the transcript and come upon the trial court's conclusion, one is left with the inescapable impression that something is amiss; or, to quote a favorite philosopher of mine, strange things were afoot at the Circle K. The only reasonable possibilities are that (1.) the colloquy was incorrectly transcribed by the court reporter or (2.) the defendant invoked his right to testify, but the trial judge and defense counsel ignored the request.

Obviously, the first possibility is the more reasonable one, but I still think the Court of Appeals has missed the point. As the Mississippi Supreme Court made clear in Culberson v. State, 412 So. 2d 1184 (Miss. 1982), "[t]he denial of the right of an accused to testify is a violation of his constitutional right," no matter what. Id. at 1186. Eight years later, in Jaco v. State, 574 So. 2d 625 (Miss. 1990), the Supreme Court affirmed a conviction upon finding that "[n]othing . . . indicated of record a desire to testify . . . ." Id. at 634. But the converse of the Jaco conclusion must also be true: when something in the record indicates a desire to testify, then the right is invoked.

I can understand the majority's thought process, but by its very nature, the conclusion oversteps the bounds that an appellate court is supposed to recognize: it "must confine itself to what actually does appear in the record." Am. Fire Protection, Inc. v. Lewis, 653 So. 2d 1387, 1390 (Miss. 1995). The Supreme Court and the Court of Appeals long have admonished the bar of its duty to preserve a record adequate to support appellate review, and rightly so. But that was done here. And where an appellant preserves a record demonstrating a clear desire to invoke a constitutional right, and where the record demonstrates a trial court proceeding in spite of that constitutional right, then the question must be closed.

After all, if appellate courts are going to get into the business of guessing when transcripts are accurate and when they are not, then the duty to preserve a record becomes nothing more than a procedural formality.

Your Daily Writing CLE

Bardwell — Mon, 01 Mar 2010 17:14:00 GMT

Pulling up an article called "Five Ways to Write Like John Roberts" feels a little bit like opening a brochure entitled "Six Quick and Easy Ways to Pitch Like Nolan Ryan." But Ross Guberman's essay isn't nearly as imposing as it sounds, pulling together a handful of quick pointers from a famous Roberts brief to illustrate the fluidity of the chief justice's storytelling. Anyone who writes appellate briefs on a regular basis ought to spend 10 minutes with it.

h/t How Appealing.

Tupelo Lawyer Tosses Hat in COA Ring

Bardwell — Sat, 27 Feb 2010 19:46:00 GMT

Reliable sources report that Tupelo attorney Kelly Mims has filed to run for the Mississippi Court of Appeals seat currently held by Judge Donna Barnes.

It may go down as the only action on the ballot for appellate courts this year. I'm unaware of any other candidates that have filed to challenge incumbents, for what that's worth.

COA Got It Wrong in Wright

Bardwell — Fri, 26 Feb 2010 14:56:00 GMT

Generally, I try to avoid describing legal opinions as "wrong," even when I disagree with them. The law's a complicated creature, after all, and even conclusions with which one vehemently disagrees usually can still be recognized as reasonable.

Having said that, the Court of Appeals got one wrong this week in Wright v. Royal Carpet Services, and Philip Thomas (who has been doing a bang-up job recently, by the way) explains how with detail that would render my own analysis superfluous at best. In a nutshell, the Court held that when a party loses a motion in limine, he cannot be the first to refer to that evidence at trial, or else he waives his right to appeal the decision on the motion.

To put it in baseball terms (the Braves play their first spring training game on Tuesday, you know), it's the legal equivalent of being called out after getting hit by a pitch and rubbing the bruise on your way to first base.

As Philip points out, there's a wealth of Supreme Court authority that contradicts that conclusion, and Judge Maxwell's separate outlines it persuasively.

But nearly as importantly, the decision demonstrates a troubling but apparent disconnect between the concurring members and the real-world practicalities of trying a case. A basic tenet of trial strategy is that, when faced with a piece of unfavorable evidence, one should be the first to show it to the jury in order to dull its effects -- or, as it's often described, to "take the sting out." The majority's inability to recognize this seems slightly out of touch, and that's to say nothing of the authority in conflict with their holding.

Perhaps it's not surprising, then, to see that Judge Maxwell -- the newest member of the Court and recently a practicing federal prosecutor -- led the charge for the judges who disagreed.

Ultimately, though, it may be much ado about nothing, because technically speaking, I'm not sure that the decision creates binding precedent. The Court's opinion drew only five votes -- not a majority of the Court -- and one of its members, Judge Irving, joined in result only. Judge Maxwell's separate opinion, on the other hand, pulled a total of five full votes (why that doesn't make it the "majority" opinion, I don't know). Suffice it to say, though, that a majority of Court's members declined to concur in the lead opinion's reasoning.

But even if the decision stands as authority, it's an outlier at best in the realm of evidence-based appeals. Still, I hope this is one that the Mississippi Supreme Court will spend a few minutes cleaning up.

Working Overtime at COA

Bardwell — Thu, 25 Feb 2010 00:59:00 GMT

Judge Carlton's upcoming leave of absence from the Court of Appeals must help explain why the Court -- in what must be some kind of a record -- handed down a whopping twenty-three published opinions on Tuesday. As a comparison, consider that the Mississippi Supreme Court hasn't handed down that many opinions all year.

If you're keeping score, then Judge Carlton led the way with seven of Tuesday's opinions (again, that's got to be a record), followed by Judge Barnes and Judge Griffis, who (respectably) finished tied in second with four apiece.

U.S. Army Drafts Judge Carlton

Bardwell — Thu, 25 Feb 2010 00:35:00 GMT

Wow. I haven't seen this anywhere else yet, so there's no link to share, but according to a press release from the Mississippi Supreme Court's public relations office...

Judge Virginia Carlton of the Mississippi Court of Appeals has been called to active military duty for approximately 90 days to serve with the U.S. Army Court of Criminal Appeals in Alexandria, Va.

Judge Carlton reports to active duty March 1. She will be on an unpaid leave of absence from the Mississippi Court of Appeals March 1 until her return on May 31.

Judge Carlton will assist in the appellate review of active duty Army courts-martial.

Judge Carlton said, "I’m humbled that the active duty Army has called upon me to serve my country in this way with the active duty Army criminal appellate court. I am also humbled by the Army’s confidence in me to activate me from the Mississippi National Guard to serve with active duty Army appellate judges to review active duty courts-martial. I’m honored to do my duty and to serve my country."

Judge Carlton in recent weeks has worked extremely hard to complete pending cases assigned to her on the Mississippi Court of Appeals. She will resume case assignments upon her return.

MSSC Wavering on Waiver?

Bardwell — Mon, 22 Feb 2010 18:25:00 GMT

Philip Thomas makes an interesting point today regarding the Mississippi Supreme Court's decision on Thursday regarding the three-year one-year limitations period for intentional infliction of emotional distress:

The Court is slowly developing an irreconcilably inconsistent body of law on the issue of waiver of affirmative defenses. In some cases the court finds a waiver based on the passing of a certain amount of time. In other cases, it finds no waiver for similar or longer amounts of time. Efforts to distinguish the different cases are un-persuasive. It appears that what the Court is really doing is basing its waiver decisions on subjective feelings about who should win the case. I’m not saying that is what the Court is actually doing. But that is how it’s starting to look—and that’s a problem.

I probably ought to do a little research before I chime in, but at the risk of putting words in his mouth, Philip's central point is that appearances matter.

No Day in SCOTUS for Goff, Scott

Bardwell — Mon, 22 Feb 2010 18:18:00 GMT

The Clarion-Ledger reports that the U.S. Supreme Court has denied certiorari in two murder cases reviewed recently by the Mississippi Supreme Court.

In Scott v. State, the state high court affirmed by a vote of 8-1 the conviction of a defendant whose attorney confided in the trial judge that his client had confessed to the crime.

In Goff v. State, the Court split 5-4 in affirming the conviction of a capital-murder defendant who argued that prosecutors had failed to offer evidence in support of an underlying crime.

Incidentally, for you Mississippi Supreme Court trivia buffs out there, Scott was former Chief Justice Smith's last majority opinion in a criminal case.