No such thing as "misdemeanor accessory before the fact" in Mississippi

A question arose today about whether or not someone could be charged with being an accessory before the fact to a misdemeanor crime.  Here's the language of Miss. Code Section 97-1-3:

Every person who shall be an accessory to any felony, before the fact, shall be deemed and considered a principal, and shall be indicted and punished as such; and this whether the principal have been previously convicted or not. (Emphasis added.)

As you can see, in order to be charged with accessory before the fact, the principal's charge must be a felony, not a misdemeanor.  The same is true with accessory after the fact.

The felony requirement does not apply to conspiracies, though.

Mississippi statutes concerning murder substantially altered

There was a lot of activity this session in the Mississippi Legislature regarding our criminal statutes. One of the interesting bills to make it through the process was SB2377, which lessened the penalty for depraved heart murder.

Starting July 1, Mississippi juries will begin deciding between "first-degree" murder and "second-degree" murder. Previously, these crimes were known as "deliberate design" murder and "depraved heart" murder, respectively. The difference is much more than cosmetic, as the penalty for first-degree (née deliberate design) murder remains life without parole, while the penalty for second-degree murder is life if fixed by the jury, or 20-40 years if set by the judge.

To understand why this legislation is important, you first need to understand the difference between the two types of murder. Depraved heart murder is defined as a killing "when done in the commission of an act eminently dangerous to others and evincing a depraved heart, regardless of human life, although without any premeditated design to effect the death of any particular individual." Deliberate design murder is defined as a killing "done with deliberate design to effect the death of the person killed, or of any human being."

The difference, in short, is one of intent, that all important element of criminal law. Depraved heart murder has long been considered a "manslaughter plus" that was something in between deliberate design murder and manslaughter. Unfortunately, the penalties for depraved heart murder and deliberate design murder have been exactly the same for quite some time now: life in the penitentiary without the possibility of parole. This will now change on July 1, 2013.

The effect will be to allow for much more plea bargaining in homicide cases.  Prior to this law, the outcomes for a murder trial were essentially 1) guilty of murder, 2) guilty of manslaughter (if the evidence warrants the instruction), or 3) not guilty of anything.  The maximum penalty for manslaughter is 20 years with the possibility of parole, leaving a huge gap between murder and manslaughter.  That gap in possible penalty made prosecutors very reluctant to offer plea bargains in homicide cases.  Now that criminal law practitioners have something to fill that gap, expect to see new attempts to resolve the "hard" cases.

As a result, having skilled and experienced trial counsel that is up to speed on the new law is all that much more important.

Don't expect the Mississippi Rules of Criminal Procedure any time soon

Over the past 2 days, I've had the pleasure of hearing multiple Supreme Court justices discuss the current status of the proposed Mississippi Rules of Criminal Procedure. The consensus is that they are undergoing fairly significant revisions, and that they will again be let for comment prior to promulgating the Rules.

My guess is that we are still over a year away from the Rules becoming effective.

A reminder: cops are not entitled to search your cell phone text messages without a warrant

I'm seeing this a good bit lately, so I figured I'd put this out there as a public service announcement.  Here's the scenario:

Person gets arrested for possession of some illegal drug.  Cocaine, pills, whatever.  Sometimes it's only a misdemeanor amount of marijuana.  Officers then grab the person's cell phone and begin looking through the text messages.  Officers find a text message or fifteen that look like drug deals being set up.  Person is then charged with possession with the intent to distribute making the charge much more serious (up to 30 years in the penitentiary).

Now, in the above scenario, the officer will, without fail, testify under oath that the person he arrested gave him permission to search that cell phone.  And unfortunately a lot of times, the officer will be telling the truth.

So here's what you, John Q. Public, should do.  First, don't break the law by possessing or selling drugs.  But if you're going to, please don't talk about said drugs via text message.  And if you can't manage to do that, make sure you have a password on your phone that prevents Officer Busybody from digging around on your phone without your consent or a warrant.  And never give that officer permission to search your phone.

Remember: A lot of men and women have died to secure your rights against self-incrimination.  Please respect them and utilize it.