Changes to Mississippi's DUI law - Part 1

You may have heard that there are going to be significant changes to Mississippi's DUI laws taking effect on October 1, 2014.  Well that's true, and here are a few of the major changes the public should know about.

1. Ignition interlock comes to Mississippi - Long a staple of DUI laws in other states, the ignition interlock device will now be a major part of DUI cases in Mississippi.  An ignition interlock device is a breath test machine that is wired to a car's starter system, making it impossible to start a vehicle's engine if alcohol is detected on the driver's breath.  People convicted of DUIs in Mississippi after October 1, 2014 will be forced to have these devices installed on their cars for a period of 90 days.

2.  Non-adjudication returns - Under certain circumstances, a person facing a DUI charge in Mississippi will be eligible for non-adjudication.  This is a program under which a person charged with DUI enters a plea of guilty to the DUI charge, but is not found guilty of DUI.  Instead, the DUI defendant must undergo a period of probation, pay all court costs and fines that they would have paid if convicted, pay a $250 non-adjudication fee into the Interlock Device Fund of the State Treasury, attend the Mississippi Alcohol Safety Education Program (MASEP), and have an ignition interlock device installed on their car for 120 days.  Upon completion of these conditions, the DUI charge is dismissed, and can be removed from the person's record.

3.  Expunction (a.k.a "expungement") will be available for DUI - In the past, a person could not remove a DUI from their criminal record.  That will change come October 1, 2014, so long as certain requirements are met.  First, at least five (5) years must have passed since the person successfully completed of all terms and conditions of their DUI sentence.    Second, the person cannot have refused to submit to a blood or breath test when stopped for the DUI.  Third, if there are test results available from the blood or breath test, the person's BAC cannot have been higher than 0.16%.  Fourth, the person cannot have any other DUI conviction or pending DUI charge.  Finally, the person must provide the judge with a reason why the conviction should be expunged.

There are several other very important changes, and more to the ones listed above.  I'll post more about the new DUI laws in the near future.

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.

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.