BREAKING - MSSC says house burglary NOT a per se crime of violence

In the case of Mark Kee Brown v. State, the Mississippi Supreme Court has ruled this afternoon that for purposes of the habitual offender statute, house burglary is not a crime of violence.  For the purposes of plea negotiations and determining whether or not a trial is worth the risk, this is a big development in Mississippi criminal law.  Congratulations to Hunter Aikens and Leslie Lee of the State Defender's Office for winning this victory!

How cops spy on you

I first started seeing cell tower location data being used by local law enforcement in Mississippi in 2007.  All the police have to do is send a subpoena to the cell phone company, and the cell phone company will send over the information showing where a person's cell phone was at any time of the day or night.  That subpoena isn't signed by a judge, and it certainly isn't given to the person who is the target of the investigation.

That means that if you're like most people and carry a cell phone with you everywhere, the police may well know the answer to the question "Can you tell me where you were last night?" before they even ask it.  Given the increased ability of police to track your every move without you even knowing it, it is more important than ever to utilize your 5th Amendment right to silence and your 6th Amendment right to counsel immediately if you are being questioned by police.  The last thing you want to do is to make your plight worse by telling the cops something they can later prove as false.

And it doesn't stop with cell phone tower locations.  The website ArsTechnica has a good article about what police can obtain without your knowledge and how easily they can obtain it.  It's a good read, and something to always keep in mind when sending things you might not want to advertise to the world.  Here's the article: emails, text messages, and IP addresses, oh my.

The Mississippi Bar website gets a facelift

The Mississippi Bar's website has been a useful tool over the years, especially when trying to find a lawyer's contact information.  There was always plenty of other information on the site, but there were so many options on the front page that it was sometimes difficult to find what you were looking for.

That's all changed now that the website has been revamped.  The menus are well organized, and the site is more aesthetically pleasing.  Kudos to the hardworking Bar staff who put it together!  You can visit the new bar website at www.msbar.org.

California Supreme Court wrestles with bite mark evidence, loses

The L.A. Times is reporting on what appears to be an awful decision by the California Supreme Court. In a case reminiscent of Mississippi in the days of "expert" witness Dr. Michael West, the California Supreme Court has refused to grant a new trial to a man convicted on discredited "bite mark" evidence.

At his third trial (two hung juries had before refused to convict), William Richards was convicted of murdering his wife. The difference between the first two trials and the third was the introduction of bite mark evidence by the prosecution. ("Bite mark" evidence has been discredited here in Mississippi.) In the third trial, a prosecution "expert" witness testified that something on the decedent's hand appearing to be a bite mark was a near-certain match to Mr. Richards' teeth.

Of course years later, when presented with better photographs of the mark on the hand, the "expert" recanted his testimony, saying that wasn't a match to the defendant's teeth. Oh, and then there's the whole "other person's DNA on the murder weapon" thing that came to light as well.

None of that mattered, though, to 4 of the California Supreme Court justices, who refused to grant Mr. Richards a new trial.  Grass ain't always greener, I guess....

Huffington Post: Mississippi prepares to execute potentially innocent man

Radley Balko has a compelling piece up on the Huffington Post about the Jeffrey Havard case.  I don't have anything I can add to Radley's coverage of this, partly because I would be divulging work product, but mostly because he's done an excellent job of covering all things Hayne since 2006.

Radley Balko has been one of the greatest friends the Mississippi criminal justice system has had over the last decade.  The work on cases related to Dr. Steven Hayne is nowhere near complete, and won't be for a long time.  Thankfully, Balko isn't going anywhere.  Here's the piece: Despite Evidence From Discredited Medical Examiner, Mississippi's Jeffrey Havard Nears Execution.

A horrifying look inside the New Orleans criminal justice system

The New Orleans criminal justice system wasn't in the best of shape before Katrina, and it hasn't recovered very well in the storm's aftermath. This look inside a broken system is shocking, and presents a warning to folks here in neighboring Mississippi who would continue to kick the can of public defense funding down the road. Thanks to Karen Houppert of The Nation for writing a great article on an important subject.

Just an idle observation on an unconstitutional constitutional provision

Hard to imagine this being challenged ever, since someone who did would be run out of the state on a rail.  But it plainly runs afoul of the U.S. Constitution:

CONSTITUTION OF THE STATE OF MISSISSIPPI
Article 14. GENERAL PROVISIONS
Current through 2011 

§ 265. Denial of Supreme Being disqualification to hold office 

No person who denies the existence of a Supreme Being shall hold any office in this state. 

Source:
1817 art VI § 6; 1832 art VII § 5; 1869 art XII § 3.

Goes to show that you never know what you'll find when you go thumbing through the 1890 Constitution.

The current landscape of collateral consequences of conviction, and the coming debate

Currently in Mississippi, felony convictions are like diamonds: they're forever.  There are a few rare exceptions, outlined generally in Section 99-19-71, that allow for expunction (often called "expungement") of records of felony convictions.  Currently, felonies which may be expunged include convictions for bad checks, possession of a controlled substance, false pretenses, larceny, malicious mischief, and shoplifting.  Of course, as always, there are many intricacies to the law, so you'd need to seek the advice of an experience criminal practitioner in order to make sure a particular conviction is eligible for expunction.

What that means is that all other nonviolent felony crimes carry enormous consequences, which will never go away.  First, you can no longer legally carry a firearm.  If a convicted felon is found guilty of carrying a firearm, the maximum sentence is 10 years.  Think about that for a second.  I'm sure we all know good people who made bad mistakes when they were in their late teens and early twenties.  Those folks can't go hunting without risking a decade in the penitentiary.  To say nothing of their inability to vote and their difficulty finding a job.

These "collateral consequences" of a felony conviction make sense in certain instances.  For example, we probably are justified as a society having a rule that people convicted of armed robbery don't get to carry handguns.  That makes sense.  But over the last few decades of being "tough on crime", we've created a situation in which we are making it more and more difficult for first time, nonviolent offenders to recover from the error in judgment that led to their conviction.

That's where the National Inventory of the Collateral Consequences of Conviction comes in.  Launched yesterday by the American Bar Association, it promises to be an invaluable tool for defendants, prosecutors, judges, and criminal defense attorneys.  I predict it will also have a collateral consequence of its own, however.  I'd bet that as the Mississippi information is added to the site, our politicians are going to be armed with the information to have a serious debate about how we treat citizens convicted of nonviolent crimes.  And I think that will be a good thing.

Read the companion post at Cottonmouth.

"Flight" jury instructions should be less frequent after States v. State

The case of Shawn States v. State is one with which I am somewhat, although not greatly, familiar.  In short, Mr. States was convicted by a Hinds County jury of capital murder for the killing of Antoine Reece and Justin Howard and taking credit cards belonging to the men, along with Reece's Jaguar. States was found in Miami with his girlfriend, who was about to be deployed to Iraq.  At trial, the prosecution offered a flight instruction, and Judge Swan Yerger gave that instruction to the jury.  That instruction would become the bone of contention at the Supreme Court.

Justice Jess Dickinson wrote the 8 vote majority opinion affirming the conviction, which found no error on States' first two issues.  The Court did, however, find error in States' third issue, albeit harmless. Dickinson begins the discussion of States' third issue thusly:

The reason for the lapse in publishing

I've been preparing for an oral argument before the Mississippi Court of Appeals.  I hope to resume criminal law blogging after that's over.

Sen. Will Longwitz's attempted murder bill

Earlier today, I suggested that Rep. Bill Denny (R - Jackson) take a different approach to tinkering with the offense of attempted murder in Mississippi.  My law school classmate Sen. Will Longwitz (R - Madison) offered up a bill along the lines of what I'd suggested in that post.  You can read that bill here.  In short, it amends the attempt statute and sets the penalty for attempted murder at 20 years to life.

Sen. Longwitz's bill died in the Senate Judiciary A committee.  We'll see if Longwitz's legislation has more luck next year.  I'm not ready to say it's a perfect bill, but it certainly is a better approach than Denny's, and should receive consideration if lawmakers want to address attempted murder.

Why Rep. Bill Denny's attempted murder legislation keeps failing

For over a decade now, Rep. Bill Denny (R - Jackson) has been introducing legislation that would purportedly create the offense of attempted murder in Mississippi. His attempted murder bills have died every year, including this year, even though his party is in complete control of the Mississippi legislative process.

On its face, the bill seems to make sense. If someone sets out to murder someone and fails because their intended victim lives, that's attempted murder. And traditionally, attempted crimes carry a punishment similar to the completed crime. However, in modern Mississippi criminal practice such crimes are prosecuted as aggravated assaults rather than attempted murders. That might lead you to think that we just don't have attempted murder in our statutes, and that we should rectify the problem by passing legislation like Denny's.

You'd be wrong.

Why "capital offense" doesn't mean what you think it means

You've no doubt heard of the terms "capital offense" and "capital punishment", and you probably assume that capital murder is the only capital offense, and that being sent to death row to receive capital punishment is the only outcome when someone is convicted of a capital crime.  And you'd have some basis for that assumption, as other states reserve the term "capital" strictly for crimes that can result in execution.  Well, not Mississippi.

Section 1-3-4 of the Mississippi Code of 1972 reads as follows:

The terms "capital case," "capital cases," "capital offense," "capital offenses," and "capital crime" when used in any statute shall denote criminal cases, offenses and crimes punishable by death or imprisonment for life in the state penitentiary. The term "capital murder" when used in any statute shall denote criminal cases, offenses and crimes punishable by death, or imprisonment for life.

That means that armed robbery, kidnapping, rape, and "simple" murder are all capital crimes in Mississippi, even though the maximum punishment for each is life in prison.

The above definition has multiple implications for the prosecution and defense of capital cases in Mississippi.  For example, a separate juror oath exists for capital crimes and for non-capital offenses. Failure to administer the capital oath may constitute reversible error in and of itself in a capital trial.  Perhaps most importantly for someone charged with a capital crime, Article III, Section 29 of the Mississippi Constitution of 1890 provides that "Excessive bail shall not be required, and all persons shall, before conviction, be bailable by sufficient sureties, except for capital offenses where the proof is evident or presumption great."  That means that a defendant facing a capital crime such as armed robbery or kidnapping can constitutionally be denied bail if the judge finds "the proof evident and the presumption great."

Frontline focuses on forensic evidence tonight

I'll be on PBS's Frontline tonight in an episode entitled "The Real CSI."  The show will investigate problems with the science behind forensic evidence and how it is used in the courtroom.  I was interviewed for the program, and appear towards the end of the preview below.

Those of you who know me know that I've spent a good portion of my legal career trying to clean up Mississippi's death investigation system. As I said in my interview with Frontline, getting forensic evidence right is vitally important for two reasons. First, it prevents our society from putting innocent people in jail. And that's important when one of the foundational principles of our criminal justice system is Blackstone's statement that it is "better that ten guilty persons escape than that one innocent suffer." (This principle is even espoused as long ago as Genesis 18, in which God says he would spare the entire city of Sodom if ten righteous people can be found within it.)

The second reason getting forensics right is that when we do it wrong, killers remain free amongst us to strike again. Like Justin Albert Johnson.

Anyway, here's the trailer for tonight's episode of Frontline on PBS. You can watch it at 10 pm EST/9 pm CST.

A look into the proposed Mississippi Rules of Criminal Procedure (first in a series of many)

I hope everyone had an enjoyable Easter holiday.  Last week, I mentioned that the next big thing in Mississippi criminal practice would be the adoption of the Mississippi Rules of Criminal Procedure.  The proposed MRCrP can be found here.  They are not final, but have been through the comment period, which indicates that the proposed MRCrP are likely to resemble the final product to a great degree.

That being said, I'm going to take a great deal of time to go through the proposed MRCrP here on the blog, pointing out the things I find interesting, pleasing, troublesome, etc.  Today is the first in what I anticipate will be a long line of posts.

I'm starting towards the beginning of the proposed MRCrP, with Rules 2.1.  Rule 2.1 goes a long way towards clarifying and standardizing criminal practice in Mississippi, and I believe that to be a laudable goal.  But it is here that we run into what may well be a persistent problem throughout the proposed MRCrP, and that is the difference between the Mississippi Supreme Court's inherent rule-making powers and the authority to pass legislation, which is reserved to the Legislature.

Rule 2.1 seeks to solidify the "complaint" and the "indictment" as the two documents that may begin a criminal prosecution.  As far as I know, there hasn't been an issue with calling the true bill issued by the grand jury by a name other than "indictment."  That does not hold true with what may soon be known uniformly as the complaint.  Different jurisdictions around Mississippi currently refer to the other charging instrument by different names, including "information," "warrant", "affidavit," and yes, "complaint."

The multitude of terms comes from our Constitution and the Mississippi Code of 1972.  Article 3, Section 27 of the Mississippi Constitution of 1890 forbids using an "information" to prosecute someone for an "indictable offense." In Mississippi, felonies are the indictable offenses.  (See State v. Sansome, 97 So. 753 (Miss. 1923).)  However, this right to have one's case presented to a grand jury is one that a criminal defendant can waive.  (See Berry v. State, 19 So. 3d 137 (Miss. Ct. App. 2009).)  In those instances, the prosecution currently proceeds by way of information.  Under the proposed MRCrP, it is unclear whether or not the term "information" would be used any longer to denote the charging instrument used when a defendant waives his rights under Article 3, Section 27.

The other source of terminology is Section 99-1-7 of the Mississippi Code.  Under that section, prosecutions are commenced by the issuance of a warrant, indictment or affidavit.

The source of these terms is more than just etymology.  Seeing as the proposed MRCrP 2.1 seeks to alter the terminology for criminal charging instruments already given in our Constitution and Code, the question must be asked as to whether the Court would be overstepping its bounds in enacting such a rule.  Personally, I hope this question can be resolved (in this instance, at least) in favor of the Court's power, as their proposed solution is one that would improve criminal practice in Mississippi.

Eyewitness identification and testimony - Is it reliable?

"Believe none of what you hear and half of what you see." - Benjamin Franklin 

The uproar surrounding the alleged shoving of Rep. Reecy Dickson (D - Macon) by a reported Tea Party member has been the talk of the Mississippi political world today.  Some folks say Rep. Dickson was shoved, some say she was grabbed, some say she wasn't touched at all.  Regardless of what happened, the State Capitol Police investigated and no charges were pressed.

But that leaves a lingering question, doesn't it?  How can so many supposed eyewitnesses claim so many versions of the event as the truth?

What's "the next big thing" in Mississippi criminal law?

Currently, the practice of criminal law in Mississippi is governed by few rules.  The Uniform Rules of Circuit and County Court Practice (URCCC), adopted in 1995, are currently the "go-to" rules governing Mississippi criminal cases.  The URCCC contains 43 different rules specifically dealing with criminal proceedings (URCCC 6.01 - 12.04), and they cover things from the timing of the defendant's initial appearance (within 48 hours) to appeals from municipal and county court.  Including comments, those 43 rules are spread over 13 pages.

That is all about to change.

Simple assault on a legislator...what does that carry?

This afternoon in the Capitol, a visitor to the Capitol allegedly shoved Rep. Reecy Dickson (D - Macon) after the charter schools bill died in the House Education Committee.  Rep. Chuck Espy (D - Clarksdale) vowed to get to the bottom of what happened and see to it that an apology was issued.

Well, under Mississippi law, pushing a legislator carries a punishment much stiffer than a forced apology.  Miss. Code Ann. Section 97-3-7(1) reads as follows:

(1) A person is guilty of simple assault if he (a) attempts to cause or purposely, knowingly or recklessly causes bodily injury to another; or (b) negligently causes bodily injury to another with a deadly weapon or other means likely to produce death or serious bodily harm; or (c) attempts by physical menace to put another in fear of imminent serious bodily harm; and, upon conviction, he shall be punished by a fine of not more than Five Hundred Dollars ($ 500.00) or by imprisonment in the county jail for not more than six (6) months, or both. However, a person convicted of simple assault (a) upon a statewide elected official, law enforcement officer, fireman, emergency medical personnel, public health personnel, social worker or family protection specialist or family protection worker employed by the Department of Human Services or another agency, youth detention center personnel, training school juvenile care worker, any county or municipal jail officer, superintendent, principal, teacher or other instructional personnel, school attendance officer, school bus driver, or a judge of a circuit, chancery, county, justice, municipal or youth court or a judge of the Court of Appeals or a justice of the Supreme Court, district attorney, legal assistant to a district attorney, county prosecutor, municipal prosecutor, court reporter employed by a court, court administrator, clerk or deputy clerk of the court, or public defender, while such statewide elected official, judge or justice, law enforcement officer, fireman, emergency medical personnel, public health personnel, social worker, family protection specialist, family protection worker, youth detention center personnel, training school juvenile care worker, any county or municipal jail officer, superintendent, principal, teacher or other instructional personnel, school attendance officer, school bus driver, district attorney, legal assistant to a district attorney, county prosecutor, municipal prosecutor, court reporter employed by a court, court administrator, clerk or deputy clerk of the court, or public defender is acting within the scope of his duty, office or employment; (b) upon a legislator while the Legislature is in regular or extraordinary session or while otherwise acting within the scope of his duty, office or employment; or (c) upon a person who is sixty-five (65) years of age or older or a person who is a vulnerable adult, as defined in Section 43-47-5, shall be punished by a fine of not more than One Thousand Dollars ($ 1,000.00) or by imprisonment for not more than five (5) years, or both. (Emphasis added.)

Now, a little shove might be offensive as hell, but that doesn't mean it's simple assault under Mississippi law.  If, however, a person was found guilty of simple assault on a legislator, the max would be 5 years in the penitentiary and/or a $1,000.00 fine.  Not only are the penalties stiffer, the conviction would be classified as a felony rather than a misdemeanor.

Y'all be careful around these legislators, now.

Troubling decision out of the United States Supreme Court yesterday

This blog is focused on criminal law in Mississippi, so the majority of the posts will naturally concern Mississippi statutes and courts. There will be a minority of posts concerning United States Supreme Court cases, and this is one of those.

The New York Times reports on the USSC's Monday decision in Florence v. County of Burlington. The appellant, Albert W. Florence, had been erroneously arrested in Burlington County, New Jersey, for an unpaid fine. After arrest, Florence was subjected to a strip search while he was processed into the Burlington County jail. Florence was again strip-searched after being transferred to the Essex County jail. As it turns out, Florence had paid the fine prior to the arrest.

Florence filed suit against the counties under 42 USC 1983, claiming that subjecting someone arrested for minor offenses to a strip search is overly invasive and violative of the Fourth and Fourteenth Amendments to the United States Constitution, asserting that prison officials must have at least reasonable suspicion to strip search a detainee. There had previously been a circuit split on the issue of whether or not strip searches for minor offenses were proper.

Well, a 5-vote majority opinion written by Justice Anthony Kennedy put the split to bed, holding that prison officials had every right to strip-search detainees so long as “if it is reasonably related to legitimate penological interests.” (citing Turner v. Safley, 482 U. S. 78, 89.) Justice Kennedy was predictably joined by Chief Justice John Roberts, Justice Antonin Scalia, and Justice Samuel Alito in full, and in part by Justice Clarence Thomas.

The dissent was authored by Justice Stephen Breyer, who was joined by Justice Ruth Bader Ginsberg, Justice Sonia Sotomayor, and Justice Elena Kagan. In the parlor game of predicting the votes of United States Supreme Court justices, this decision followed the 4-4-1 mold that has developed over the last few years, with Justice Kennedy being the wild card on many issues.

The NYT has some good coverage of the interplay between the opinions that essentially sums up the positions of the two sides:

According to opinions in the lower courts, people may be strip-searched after arrests for violating a leash law, driving without a license and failing to pay child support. Citing examples from briefs submitted to the Supreme Court, Justice Breyer wrote that people have been subjected to “the humiliation of a visual strip-search” after being arrested for driving with a noisy muffler, failing to use a turn signal and riding a bicycle without an audible bell.

A nun was strip-searched, he wrote, after an arrest for trespassing during an antiwar demonstration.

Justice Kennedy responded that “people detained for minor offenses can turn out to be the most devious and dangerous criminals.” He noted that Timothy McVeigh, later put to death for his role in the 1995 Oklahoma City bombing, was first arrested for driving without a license plate. “One of the terrorists involved in the Sept. 11 attacks was stopped and ticketed for speeding just two days before hijacking Flight 93,” Justice Kennedy added.

I can't resist pointing out the awful logic the normally together Justice Kennedy employed here.  And I can't help but think that if Justice Kennedy had been subjected to a strip search himself after a speeding ticket, he wouldn't be so enamored of this logic.

Another day, another blow to freedom from the so-called "conservatives" on the United States Supreme Court.

So what does this mean for Mississippians?  It means that anyone stopped and arrested for outstanding fines or any other minor offense (possession of marijuana, DUI, etc.) can be strip-searched at the jail upon arrival.  It will be interesting to see if any jails currently not performing blanket strip searches now change their policies to conduct them.