Mississippi Criminal Defense Law Blog
Mississippi Criminal Defense Law Blog

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Recent Posts

  1. New School Year = New DUI Crackdown
    Thursday, August 18, 2011
  2. Criminal Records, the Internet & Digital Footprints
    Monday, May 02, 2011
  3. Ole Miss and Crime
    Thursday, January 13, 2011
  4. Oxford's Favorite Attorney
    Thursday, January 13, 2011
  5. 2 Year Anniversary & Oxford True Crime: Panty-Raid
    Sunday, June 27, 2010
  6. Prison Defines Mississippi
    Saturday, April 10, 2010
  7. The Economy Continues to Impact Justice
    Sunday, January 31, 2010
  8. Alcohol and Oxford: In the news again
    Monday, January 18, 2010
  9. What is Drug Court?
    Monday, January 18, 2010
  10. Oxford Criminal Law News
    Wednesday, December 02, 2009

New School Year = New DUI Crackdown

Today the Mississippi Department of Public Safety announced its annual DUI crackdown entitled "Drive Sober or Get Pulled Over". This announcement has become an annual back-to-school tradition, though there is a new theme every year (see previous posts here and here). The Oxford Eagle reports that the local police departments will begin the crackdown today and that it will continue until September 5th, specifically including Labor Day and the first Ole Miss home game versus BYU, and that enforcement will be particularly heavy at night and on weekends.

One thing that struck me about this year's ad is that it cites the "cost of a D.U.I." as "around $10,000.00". In my opinion, that estimate is significantly inflated. Obviously being arrested for any crime, bailing out, hiring an attorney and going through the legal process is costly. It's just that a DUI shouldn't be that costly - especially if you are ultimately found not guilty.

Obviously, the best advice is to avoid drinking and driving. But also know that while a DUI arrest may be costly, $10,000.00 is certainly not typical.

Criminal Records, the Internet & Digital Footprints

In my practice I represent clients accused of a wide variety of crimes, from relatively minor misdemeanor charges to serious felony cases. My clients come from different backgrounds, but a commonality among many is that they are young people - including many who are students.

A common topic of discussion early in my representation is the effect that the client's arrest and possible conviction may or may not have on their criminal record. Certainly this question is asked by many parents concerned about what a mistake at a young age may mean for their child's future. Thus, I found this April 28, 2011, New York Times article to be very interesting.

It begins and ends with a personal story, but includes some interesting points which I have excerpted below:
The pool of Americans seeking jobs includes more people with criminal histories than ever before, a legacy in part of stiffer sentencing and increased enforcement for nonviolent crimes like drug offenses, criminal justice experts said. And each year, more than 700,000 people are released from state and federal prisons, a total that is expected to grow as states try to reduce the fiscal burden of their overcrowded penal institutions.

Almost 65 million Americans have some type of criminal record, either for an arrest or a conviction, according to a recent report by the National Employment Law Project, whose policy co-director, Maurice Emsellem, says that the figure is probably an underestimate.

Some, like Ms. Spikes, have left their criminal pasts far behind. Others have been convicted of minor offenses, or of crimes that appear to have little relevance to the jobs they are seeking.

Employers once had to physically search court records to uncover the background of people they were considering hiring. But the Internet and the proliferation of screening companies that perform background checks have made digging into a job applicant’s history both easy and inexpensive for prospective employers.

Advocates for workers say that the indiscriminate use of background checks by companies has made finding employment extremely difficult for millions of Americans.

“We’re spending a tremendous amount of money incarcerating people and then creating a system where it’s almost impossible for them to find gainful employment,” said Adam T. Klein, an employment lawyer with Outten & Golden in New York, a firm that has represented plaintiffs in class-action lawsuits against employers over criminal checks.

It is unfortunate that crimes committed in youth can haunt a person for life - as stated in the article the internet is playing an important role. In fact, there is now a website that publishes all arrests made in Oxford and Lafayette County, including arrests made on the campus of the University of Mississippi.

The site started publishing on April 12, 2011, and includes a statement that "all suspects accused of a crime, are presumed innocent, until proven guilty in a court of law" (I prefer not to cite the website by name as explained below). This is certainly true - the State must prove a person guilty, and must do so beyond a reasonable doubt. What I don't see on the site, however, is any reporting of cases dismissed at trial or before, or removal of arrests that have been expunged. There is now a permanent digital footprint of every arrest in the county, regardless of the eventual outcome.

While I believe that open records are important, and always champion transparent government, I also know that the ability to remove a public record of an arrest or conviction via expunction serves an important societal function. Certainly this has been recognized by legislatures as they have enacted laws allowing for criminal records to be expunged - in Mississippi the list of convictions eligible was broadened just last year.

What effect will digital records of arrests hosted by private websites have in the future? I wish I knew. One hope is that websites like the one described will honor a court ordered expunction and edit their websites accordingly. Another is that the stigma associated with the online publication of the arrest won't overshadow the eventual outcome of the case at trial.

Ole Miss and Crime

This week The Oxford Eagle reported on the 2010 crime statistics at Ole Miss.  The Eagle has a pay wall, so the article isn't available for free.  I have excerpted some of the more interesting portions below, and thank Alyssa Schnugg for the reporting.
University Police Department officers on the University of Mississippi campus were kept busy in 2010 with the total number of arrests more than doubling from 2009. Drug-related arrests tripled from 2009 to 2010.

However, not all those arrested by UPD are students. Some are people coming onto the campus and breaking the law, Sellers pointed out.


Most of the increase of arrests was seen in the fall semester of 2010.


In 2009, UPD officers made 269 arrests on various charges. That number also includes 79 moving violations that, while they are listed as arrests in a report from UPD, don’t always result in an actual arrest. Defendants are instead given a notice to appear in court.


In 2010, they made 604 arrests which includes issuing 216 notices to appear for moving violations.


The biggest jump in crimes was under the drugs category, with 34 in 2009 and 108 in 2010, although a large portion of the arrests in both years were for possession of drug paraphernalia, rather than actual drug possession.


Scott Wallace, assistant dean of students, said his office has been busy as well, since whenever a student is arrested for a drug or alcohol offense, they are referred to the dean’s office.


“It’s a shame,” he said.


The university implemented a “two-strike policy” after Langley’s death in 2006. Students receiving a first strike are put on probation for at least two semesters. If they are charged with a second strike while on probation, they are suspended for the remaining semester and one more full semester.


Since its conception, about 1,200 students have received a first strike and 21 have been suspended. In the 2010 fall semester, three students were suspended. In the spring semester of 2010, there were no suspensions issued.


“There were more arrests last semester, but we’ve also had a lot more students,” Wallace said.


In 2009, 22 of the 34 drugrelated arrests were for possession of drug paraphernalia, while 11 were for possession of marijuana and one arrest was for possession of a controlled substance; however, what kind of substance isn’t noted.


In 2010, 86 were charged with possession of drug paraphernalia out of the 108 drug-related arrests. Fifteen arrest were made for possession of marijuana and six were for possession a controlled substance. One arrest in 2010 was for selling marijuana.


Paraphernalia generally involves materials used to smoke pot, Sellers said.


“Also, containers or pill bottles with marijuana residue,” he said. “This class seems more interested in drugs. It’s sad."
Most interesting to me are the arrests for drug offenses, particularly marijuana possession and possession of paraphernalia.  It is apparent to me that younger students have increased the trend of smoking pot in dorm rooms - of course this leads to more arrests because the smell of marijuana gets reported by other students in the dorm.  Students, smoking pot is still illegal, and smoking pot in the dorm is simply not a bright idea.

Oxford's Favorite Attorney

I was quite pleased to learn that last week I was voted Oxford's Favorite Attorney in The Local Voice's annual "Local Favorites Awards 2010-2011" contest.  Thanks to all the voters, and thanks to The Local Voice.


2 Year Anniversary & Oxford True Crime: Panty-Raid

I've been blogging for more than two years now - sporadically, I admit.  There was a time when I reported fairly regularly on regional criminal law news.  I ended that practice after I decided to leave that to the newspapers.  Today is a mini-revival.  It's been an interesting two years, but I can honestly say that I can't remember anything quite like this happening in Oxford. 


Prison Defines Mississippi

The Sentencing Project has published Incarceration Trends in Mississippi 1988-2008, a study by Nicole Porter.  The Sentencing Project is a national organization working for a fair and effective criminal justice system by promoting reforms in sentencing law and practice, and alternatives to incarceration.  See their website.

Ms. Porter's report lists the following key findings:
•  Mississippi has the second highest rate of incarceration in the nation.
•  Since 1988, there has been a tripling in the number of persons in prison in Mississippi.
•  Nearly two-thirds (64%) of Mississippi prisoners are incarcerated for nonviolent property and drug offenses, compared to half of the prison population nationally.
•  Mississippi incarcerates a much higher proportion of persons for drug offenses than other states, 36% of the prison population, compared to 20% nationally.
The Clarion Ledger reports on The Sentencing Project paper here, quoting Ms. Porter as follows:
"The expenditure associated with incarcerating just drug and nonviolent property law violators cost over $244 million in fiscal 2008," said Nicole Porter, who authored the report.

Porter's report says states are grappling with correctional costs versus funding for higher education and other vital services.

The report encourages states to rely less on incarceration for lower-level drug and property offenders and to consider alternatives.

"Reforms at the state level can result in tangible results that maintain public safety measures, use corrections resources more effectively and rely less on expanded incarceration," according to Porter's report.

Mississippi Commissioner Chris Epps has been pushing to increase the number of nonviolent offenders on house arrest. Epps said it saves money to have an offender on house arrest rather than incarcerated.
Clearly Ms. Porter's findings are discouraging, especially given that Mississippi consistently ranks near the bottom in education achievement and health care funding for citizens.  I have previously written about alternativesto incarceration and their potential cost savings, and can only hope that the present economy causes our leaders to re-think budget priorities. 

Is a prison sentence the best option for a non-violent drug offender?  Certainly not, when cheaper options achieve better results.

The Economy Continues to Impact Justice

Today the Clarion Ledger writes again about the effect of state budget cuts on the judicial system.  The article begins as follows:
As state agencies respond to deep budget cuts, local and state officials are raising concerns about Mississippi's ability to protect the public, prosecute and try cases, and keep criminals behind bars.

The state's chief justice says Mississippi's judicial system is in "financial crisis."

County district attorneys say cuts could stall hundreds of criminal cases across the state.
I have followed this topic with interest for some time, particularly the faulty sentiment that we need to "keep criminals behind bars" in order "to protect the public."  Today's article goes on:
Recently, the Republican governor warned that up to 4,000 prisoners could be released "onto civil society" if Democratic House leaders failed to give him authority to make cuts of varying amounts up to 10 percent.

That Barbour talked about setting prisoners free without qualification angered Mary Torrence Carpenter, whose 17-year-old son was murdered nearly three years ago.

The two men who killed Carpenter's son would not have been eligible for early release, but the Morton mother said it was an inappropriate"scare tactic" that failed to consider the feelings of the state's crime victims.
First, Ms. Carpenter is correct that statements like the one above represent an inappropriate scare tactic.  Obviously there are a number of factors considered by the Mississippi Department of Corrections prior to granting early release, and persons convicted of violent crimes as in Ms. Carpenter's case simply would not be eligible.  Hence the politically motivated scare tactic.  Fortunately, the Clarion Ledger ends the article with this:
Barbour said Tuesday he could agree to offset cuts using tobacco settlement funds. But he supported a failed plan pushed by House republicans to earmark $17 million for MDOC and restore little to education.

"What sort of sense does that make to put all of the money into the Department of Corrections to house and incarcerate young children, basically," said Rep. Tyrone Ellis, D-Starkville. "The reason they're being incarcerated is basically because they're not being educated."

If 4,000 convicts were let go early, Mississippi still would have one of the nation's highest incarceration rates, an advocacy group says.

About 750 of every 100,000 Mississippians are behind bars, said Marc Mauer, executive director of The Sentencing Project, a D.C.-based organization engaged in research and advocacy of criminal justice policy.

Minus 4,000 prisoners, that rate would drop to about 600 per 100,000.

"There's not a lot of evidence that shows that keeping someone there five years as opposed to three years will do any type of rehabilitation," Mauer said.
Exactly.  There are alternatives to incarceration that provide a greater societal benefit for those convicted of non-violent crimes at a reduced cost - this is recognized by the Mississippi Department of Corrections in this handbook and by the Mississippi judicial system, which has established Drug Court.  As I have noted before, there is a significant cost difference between incarceration and available alternative sentencing options.  For example, housing an inmate at Parchman costs $45.48 per day, while the Intensive Supervision Program (house arrest) costs just $9.96 per day.  Clearly a cost savings of $35.52 perday is substantial.  The cost difference between housing an inmate for one year in Parchman versus one year on house arrest?  $12,964.80.

Cost aside, alternative sentencing options such as Drug Court, house arrest, pre-trial diversion and other programs are designed to rehabilitate offenders.  Not only are they cost effective at present, successful programs can decrease the rate of recidivism (repeat offenders) and reduce future costs as well.

Responsibility for the budget falls to the governor and our other elected representatives.  But the fiscal crises in the judicial system is impacted by decisions made every day by local prosecutors, defense attorneys and judges.  They too should be accountable for decisions made in plea negotiations and sentencing, and consideration should be given to each person charged with a felony to insure not just that the punishment fits the crime, but that the punishment fits the offender.  Too often the judicial system looks at offenders not as individual people, but as the crime they are accused of committing.  Those accused of like crimes are given identical plea offers and sentences.  In reality, this is an apathetic way to sentence people from a wide variety of backgrounds.

Alternatives to incarceration exist, and they should be considered in every case - the American Bar Association says it well:
A rational criminal justicesystem would—while shortening sentences of certain offenders—keepothers out of prison altogether. With alternative treatments and punishments, a state shrinks its prison budget, allows convicts to keep their jobs and support their families, and makes recidivism less likely.
We can hope.

I have written previously about the potential effect of the poor economy on the criminal justice system, see Mississippi Bureau of Narcotics & the Economy, Mississippi Department of Corrections, Budget Cuts & Plea Negotiations and DUI Crackdown or Highway Patrol Fundraiser.

Alcohol and Oxford: In the news again

Anyone that lives in Oxford knows that our little town has a love-hate relationship with alcohol.  Yesterday, The Oxford Enterprise (Oxford's new Sunday paper) ran three major stories on the alcohol front, two on the front page with the third on page two.  Unfortunately, The Enterprise's website is less than up-to-date (I imagine that this is by choice to encourage paying subscribers to the paper).  I found the stories interesting, so will hit the highlights below.

The Enterprise reports first on the creation of the Downtown Safety Task Force, a 13-member task force charged with investigating safety issues on the Square.  The task force arises from apparent concern over public safety on the Square, which has a growing reputation for late-night violence and drunkenness.  The task force has been asked to make recommendations to the Mayor and Board of Aldermen, and has created working groups to study the issues.

Second, The Enterprise reports on a meeting of hospitality operators (restaurateurs) hosted by the Oxford Convention and Visitors Bureau.  The two primary topics at the meeting were evidently Sunday alcohol sales and parking on the Square.  Mayor Patterson attended, and in response to questions again indicated his opposition to Sunday sales.  The Mayor did suggest that he would put a request for Sunday sales to a vote if presented with a petition signed by 1,500 voters.

Finally, The Enterprise reports that DUI fines in Oxford Municipal Court through December 21, 2009, totaled $435,130.00.  This represents 530 total DUI fines, a small decrease from the DUI fines issued in 2008.  The story goes on to explain that the fine money amounts to only 1/26th of the City of Oxford budget, contrary to popular opinion.  Bringing together the previous stories, Mayor Patterson explains that he would trade that income for reducing the number of DUI's in Oxford.

If you didn't get a copy of yesterday's Enterprise I suggest you pick one up for the full stories.

What is Drug Court?

Drug Court is a special court designed to rehabilitate certain felony offenders through long-term comprehensive supervision, drug testing, treatment services and immediate sanctions and incentives.  The concept of drug court is a response to the recognition that the judicial and prison systems are overburdened by drug offenders, and that rehabilitation is a better solution than punishment through prison time.

According to the State of Mississippi Judiciary website "
[d]rug court participants undergo long-term treatment and counseling,sanctions, incentives, and frequent court appearances.  Successfulcompletion of the treatment program results in dismissal of thecharges, reduced or set aside sentences, lesser penalties, or acombination of these.  Most importantly, graduating participants gainthe necessary tools to rebuild their lives."   There are ten recognized "key components" of drug court, as published by the Drug Courts Program Office of the United States Department of Justice, they are:
  1. Drug courts integrate alcohol and other drug treatment services with justice system case processing.
  2. Usinga non-adversarial approach, prosecution and defense counsel promotepublic safety while protecting participants' due process rights.
  3. Eligible participants are identified early and placed promptly in the drug court program.
  4. Drug courts provide access to a continuum of alcohol, drug, and other related treatment and rehabilitation services.
  5. Abstinence is monitored by frequent alcohol and other drug testing.
  6. A coordinated strategy governs drug court responses to participant compliance.
  7. Ongoing judicial interaction with each drug court participant is essential.
  8. Monitoring and evaluation measure the achievement of program goals and gauge effectiveness.
  9. Continuing interdisciplinary education promotes effective drug court planning, implementation and operations.
  10. Forgingpartnerships among drug courts, public agencies, and community-basedorganizations generates local support and enhances drug courteffectiveness.
I have previously written about the Third Judicial District Drug Court here and here - the Drug Court covers Lafayette, Marshall, Calhoun, Tippah, Benton, Chickasaw and Union counties.  Since the inception of the Third Judicial District Drug Court in April, 2008, I have had the opportunity to work with the Court personnel, and have been impressed.  Likewise, my clients and others report many positives.  Certainly the development of drug courts is a positive and practical step in the ongoing war on drugs.

You can find additional information about Mississippi drug courts on the State of Mississippi Judiciary website, including a list of frequently asked questions, here.

Oxford Criminal Law News

Yesterday The Oxford Eagle published two news stories on local criminal law issues by Alyssa Schnugg.  The first discusses the Lafayette County Metro Narcotics Unit and its budget:
To help meet its $340,151 budget this upcoming year, the Lafayette County Metro Narcotics Unit will receive $186,163 from the Byrne-Jag Assistance Grant, a federal program that funds state narcotics agencies.

In past years, the unit has received the grant in amounts ranging from $85,000 to $140,000.

“This will help keep us running for another budget year,” said Metro Narcotics Commander Searn Lynch.

The University of Mississippi, the city of Oxford and Lafayette County all contribute $75,000 each to help support the unit that works to solve drug-related crimes in the entire area and isn’t confined within city or county jurisdictions.

Earlier this year, the university announced it was considering backing out of the interlocal agreement because of budget restraints, but UM officials later decided to continue to support the unit for another year.

The unit has several investigations going on right now, and Lynch said he hopes to have some of these “wrapped up” by the first of the year.

“Drug use in the area remains consistent,” said Lynch, who has been commander for three years.

Marijuana sales have risen recently, as well as the quality of the drug, he said.

“We’re seeing a lot of hydroponically grown marijuana,” Lynch said. “It’s more expensive and the THC (Tetrahydrocannabinol) level has grown.”
The second story explains that burglaries in Lafayette County have increased:
Brazen burglars have kept investigators with the Lafayette County Sheriff’s Department busy in recent months as they deal with a sharp increase of home break-ins.

“We’re having burglaries everywhere,” said Investigator Scott Mills.

In November 2007 there were 15 residential burglaries. In November 2008 there were 16 burglaries. As of yesterday, there were 22 reported burglaries in the county for the month of November, according to the daily crime reports released each day by the Sheriff’s Department.

Ole Miss v. Alabama = 80 arrests

Last weekend saw the biggest football crowd in Ole Miss history, but the stadium and the Grove weren't the only crowded locations in Oxford and Lafayette County.  The jail was packed.  Alyssa Schnugg has this story in the Oxford Eagle:
Local law enforcement officers were kept busy this weekend due to the many fans in town for the Alabama and Ole Miss game on Saturday.

“We were really busy,” said Oxford Police Chief Mike Martin. “It’s one of the busiest weekends we’ve had in a long time — since the Florida and LSU games when Eli (Manning) was here.”

Law enforcement officers with the OPD, Lafayette County Sheriff’s Department and the University Police Department made a total of 80 arrests between Friday and Sunday night.

“We had everybody we had available working,” Martin said. “If you weren’t on regular duty, you were somewhere working.”

On Friday and Saturday, patrol officers dealt with heavy traffic all over Oxford.

“We had parking issues and traffic congestion issues — everything was a parking lot,” Martin said. “Then, in the middle of all that, we started having to deal with people who were already drinking.”

Martin said his department towed about 30 vehicles during the weekend.

“Nineteen of those were from Molly Barr Road,” near Gertrude Ford Boulevard, Martin said. “Where we had great, big, orange signs that said ‘No Parking - Tow-Away Zone.’”

OPD made 60 arrests, while sheriff’s deputies arrested eight people and UPD arrested 12. Most of the arrests were alcohol or driving related with no felony arrests being made.

“It was crazy,” Lafayette County Sheriff Buddy East said. “We had an extra shift on and some part-time folks come in. It was hectic for a while.”

Over at the Lafayette County Detention Center, corrections officers worked around the clock to process the 70-something people who had been brought in over the weekend. While most people who are arrested are taken to the jail, some are given a “notice to appear in court” and allowed to go home without being brought into the jail and processed.

Six of the 60 arrested by OPD were given notices to appear in court, Martin said.

Jail administrator Gerald Clemons said the detention center was full for most of the weekend, but that his staff “had it covered.”

“It was just normal football-crowd stuff,” Clemons said. “For a home game, it was a pretty normal weekend. They’re always pretty busy.”

Clemons said it took a little bit longer than normal to get everyone processed and out.

“But we kept it moving,” he said Monday.
Of the arrests, 12 were for DUI.

Grand Juries and Their Legal Loopholes

    Grand juries are independent screening bodies that prosecutors use to secure indictments against criminal defendants. However, grand juries are a bit confusing in the legal sense for various reasons. First, in contrast to federal jurisdictions, states are not required to even have grand juries as part of their criminal justice process. Hurtado v. California, 110 U.S.516 (1884). In fact, only one third of the states use grand juries, Mississippi being one.

    Additionally, constitutional protections afforded to criminal defendants have been held not required for grand jury proceedings. For example, the Supreme Court has held that a prosecutor does not have a duty to disclose potentially exculpatory evidence to members of a grand jury, though he has this duty at trial. United States v. Williams, 504 U.S. 36 (1992).

    Furthermore, a witness or a potential defendant does not have the right to counsel during grand jury investigation. Kirby v. Illinois, 406 U.S. 682 (1972). The Sixth Amendment right to counsel attaches once formal prosecution against a person begins. Because the grand jury’s purpose is to start these formal charges in the first place, no constitutional right can be applied. Not only that, but witness’ or a future defendant’s attorney can’t even be in the grand jury room. Attorneys (other than the prosecutor) are not allowed in the grand jury rooms because of the constitutional reasons I just explained, but also because grand juries have been traditionally “cloaked with secrecy." Addkinsonv. State, 608 So.2d 304 (Miss.1992).

    Miss. Code Ann. §97-9-53 makes it illegal for any “grand juror, witness, district attorney, clerk, sherriff or any other officer of the court” to disclose whether an indictment was rendered, or the nature of evidence that was used to secure the indictment. However, disclosure is permitted 6 months after the proceedings or after the defendant is arrested or given bail or recognizance.

    Despite these exceptions for disclosure, it is still difficult for defense attorneys to access grand jury transcripts. If the witness at a grand jury is to be used by the state at trial, the defendant is entitled to discovery. Addkinson, 608 So.2d 304. But, many times at grand juries, prosecutors use witnesses who can only relate hearsay evidence, and therefore are not usable at trial. The Supreme Court has found no problem in grand juries securing an indictment on this type of faulty evidence, however. Costello v. United States, 350 U.S. 359 (1956).  As a practical matter therefore, prosecutors may be able to bring witnesses that they won’t use at trial to testify to things that they heard through the grapevine. This evidence is used to secure an indictment, but because the witness will not be at trial, the prosecutor shields defense attorneys from attaining the transcripts via discovery procedures.

    The final practical obstacle for defendants is that many times court reporters are not even present in the grand jury room (or so I’m told from attorneys who actually practice), therefore no recording is made. Despite Addkinson’s mandate that witness testimony from a grand jury be available to defendants if that witness intends on testifying at trial, many times that is impossible because no transcript exists.

    Any substantive grand jury reform will come from the legislature. It is hard, if not impossible, to blame prosecutors for the weirdness of grand juries. Using a hearsay witness at a grand jury proceeding is terrific strategy for a prosecutor and defense attorneys might do the same thing if he or she were in that position. Prosecutors don’t make the rules, they just play by them. But that doesn’t mean defense attorneys can’t be frustrated because the grand jury game does seem a bit rigged.

New School Year - Oxford, Ole Miss and Alcohol Revisited

Below is a re-post of a blog entry I did last August - the topics are relevant again this year.

As the new school year begins I thought I'd re-post some selected links from the past on the topic of alcohol and the laws/rules relating to consumption in Oxford and on the Ole Miss campus.  These posts address various issues, including: alcohol related penalties, field sobriety tests and talking (or not) to the police.  Enjoy!

Drinking & Driving in Oxford & Mississippi:

  • DUI Crackdown
  • DUI Penalties in Mississippi
  • Zero Tolerance for Minors
  • A DUI Lawyer: Kind of...


  • Ole Miss Alcohol Rules:
  • What are the Alcohol Rules on Campus - I'm Confused...?
  • "Changing the Culture": Ole Miss Alcohol Policy & Two Strikes Rule
  • Legal Drinking Age: The Debate Continues
  • Related Information:

  • Why Talking to the Police is a Bad Idea...Again
  • Should I Let the Cops Search My Car?
  • Field Sobriety Tests: What Are the Police Looking For?
  • DUI Crackdown or Highway Patrol Fundraiser?

    I've been following the ongoing "DUI Crackdown" campaign, also known as [“Drunk Driving. Over the Limit. Under Arrest.”] with recent posts here and here.  Today the Clarion Ledger reveals that in Mississippi, 4,967 tickets have been issued in the first 3 days of the campaign.  Guess how many were for DUI? Just 86 - less than two percent of the total tickets issued.  The campaign is being promoted as a "DUI Crackdown" but is in reality a law enforcement fundraiser.  If the promoters titled it a "campaign to issue lots of tickets, less than two percent being DUI tickets" the law-abiding public wouldn't swallow the idea so easily.

    DUI Crackdown (Again)

    Once again, Mississippi law enforcement agencies have joined together in a DUI crackdown as the new school year begins.  As I predicted, a new campaign titled [“Drunk Driving. Over the Limit. Under Arrest.”] has begun.  The Oxford Eagle reports the following today:
    Local law enforcement agencies will be out in force during the next two weeks in hopes of keeping area roadways safe during the Labor Day holiday by keeping impaired drivers off the roads.

    They will be joining thousands of other law enforcement and highway safety agencies throughout the nation who will be taking part in the “Drunk Driving. Over the Limit. Under Arrest.” campaign. The enforcement blitz began today and will continue through the holiday weekend that ends on Sept. 7.

    The national “Drunk Driving. Over the Limit. Under Arrest.” impaired-driving crackdown is a program organized by the U.S. Department of Transportation’s National Highway Traffic Safety Administration that focuses on combining high-visibility enforcement with heightened public awareness through advertising and publicity.

    “No matter what you drive — a passenger car, pickup, sport utility vehicle or motorcycle — if we catch you driving impaired, we will arrest you. No exceptions. No excuses,” said Oxford Police Chief Mike Martin.

    Violators often face jail time, the loss of their driver’s license, higher insurance rates, attorney fees, time away from work, and dozens of other expenses.

    “So don’t take the chance,” Martin warns. “Remember, if you are caught over the limit, you will be placed under arrest.”

    The Mississippi Highway Patrol will be saturating local state highways during the campaign with extra troopers and road blocks.
    Excerpted from "Police to crack down on DUI during holiday week" by Alyssa Schnugg of the Oxford Eagle.

    Ole Miss & Alcohol - In the News

    As college students prepare to return to campus, the Clarion Ledger is stirring up the issue of "alcohol abuse" here.  The article references the University of Mississippi's "Two Strike" Policy, which I have previously addressed and also mentions the Ole Miss party school reputation.  Some excerpts:

    From Web-based alcohol education courses to media campaigns featuring student athletes, Mississippi's universities are looking for new ways to curb alcohol abuse.

    "We value our students a great deal," University of Mississippi Dean of Students Sparky Reardon said. "Our repeated advice to them is to know the rules, obey the rules and take responsibility."

    Ole Miss consistently ranks among Princeton Review's top "party schools."

    Officials largely dismiss the rankings and have cracked down on alcohol enforcement in recent years.

    "This fall we'll be meeting with freshmen in residence halls, as well as the fraternities and sororities and all student-athletes," Reardon said.

    Ole Miss enforces a "two-strike" policy on campus. Any student found in violation of alcohol laws or policy twice can be suspended for a semester.

    "It's one of the toughest (policies) anywhere," Reardon said.

    I'll bet the Mississippi Highway Patrol will be back at it this week too.

    What is "Possession" (of Marijuana or other Controlled Substances) in Mississippi

    Many times in cases where possession is a critical element for the State to prove (i.e. drug cases), the prosecution must prove possession through “constructive possession”. This is a term of art developed in the legal system. It essentially means that although you were not actually possessing the illegal object at the time of your arrest (in your pocket or in your hand), you had sufficient opportunity to control or possess the illegal object (in the backseat of the car you are driving or on the coffee table where you just sat your bag of munchies). In short, “constructive possession” relies on the specific facts of your particular situation.

    The legal standard for constructive possession goes as follows:

    [T]here must be sufficient facts to warrant a finding that defendant was aware of the presence and character of the particular substance and was intentionally and consciously in possession of it...Constructive possession may be shown by establishing that the drug involved was subjected to his dominion or control. Proximity is usually an essential element, but by itself is not adequate in the absence of other incriminating circumstances. Curry v. State, 249 So.2d 414, 416 (Miss. 1971).

    Additionally, in Mississippi, often if the drugs or contraband are found on or in a premises that you own, you face an uphill battle. Pool v. State, 483 So.2d 331 (Miss. 1986). Meaning, if there is a duffel bag of drugs in the back seat of a car you own and are operating, the outlook is not good.

    But, let's change that hypothetical a bit. Let's say you are a passenger in a car where drugs are found. Does your status merely as a passenger give you the sufficient capacity to exercise dominion and control over drugs hidden somewhere in the car? Typically, no.

    In Spurlock v. State, the driver of a car was pulled over and legally searched resulting in police seizing an amount of drugs from the driver's person. The passenger, Mr. Spurlock, was searched but nothing was found. However, charges were later brought against Mr. Spurlock after drugs were uncovered from under the passenger seat during a routine inventory search. Spurlock was found guilty at trial but the appeals court reversed his conviction. That court focused on the fact that there was no evidence that Spurlock attempted to hide the drugs and his fingerprints were not found on the drugs themselves. Therefore, the court held that Spurlock did not exercise a sufficient amount of control over the contraband. Spurlock v. State, 771 So.2d 1002 (Miss. Ct. App. 2000); 3 MS Prac. Encyclopedia MS Law 23:272. This doesn't mean that all passengers get off scot free.

    If, for instance, Mr. Spurlock was found in the passenger seat with cocaine residue on his shirt and fingers or he smelled like a freshly lit joint, a court might reasonably assume that he was aware of the drugs directly beneath him. Or, if officers had seen Mr. Spurlock attempting to conceal something as they were approaching the car, a court might have sustained his conviction. Walker v. State, 2006 WL 3593462 (Miss. Ct. App. 2006) (holding that possession of controlled substances was not against the overwhelming weight of evidence where officer testified he saw defendant attempting to conceal something under his seat following a routine traffic stop).

    Essentially, many possession cases boil down to the particular facts of the case. What does this mean? It means when police suspect that they might be dealing with a possession situation, they are going to focus on every detail of the encounter, as they should. Careful and thorough police officers are what citizens should hope for, not something to fear. Unless of course you are carrying drugs in your car, in which case the police shouldn't be faulted for doing their job.

    It also means an attorney's ability to “get you off the hook” can be limited by your actions. Part of a defense lawyer's job is to navigate your set of facts through the legal system in order to attain a fair ruling — not to alter or change the facts so that you can game that system.

    One takeaway point here is to be upfront at every stage of the process should you be charged with a possession crime. Well-trained police officers can smell a lie from miles away, so lying will only heighten an officer's suspicion (better to simply not talk to them). This leads to an even more thorough, prolonged search and likely some unfavorable testimony at your trial. Also, in light of the way “constructive possession” can change with just a few more facts, it is important to tell your attorney EVERYTHING, so that he or she can tailor their research to your specific set of facts, allowing them to make the best possible argument for your case.

    For additional reading on penalties for possession of marijuana see this previous post.

    Mississippi Bureau of Narcotics & the Economy

    According to today's Clarion Ledger, here, the Mississippi Bureau of Narcotics is holding off on hiring new officers as a result of the poor economy.  The article goes on (in alarmist fashion) to discuss the "rise" in prescription drug abuse and methamphetamine production.  An excerpt:

    Fisher cited an increase in methamphetamine labs and prescription drug abuse for the increase. Investigators have found 223 meth labs in the state so far this calendar year, he said. That's 50 percent more than in the same time period in 2008, he said.

    Fisher said drug arrests have been made in every county this year. More populated counties with interstate traffic, such as Hinds and Harrison, show more illegal drug activity, he said.

    State lawmakers tried to curb meth labs by passing legislation a few years ago that restricted the purchase of over-the-counter medication used to make the drug. Fisher said meth makers are now buying the medication at different stores and "making smaller batches."

    The Methamphetamine Reduction Act of 2005, also known as the precursor law, put restrictions on products containing pseudoephedrine and ephedrine - ingredients used to make meth.

    Fisher said a federal grant could help him replace some of the 11 officers he's lost over the last year. Gov. Haley Barbour is urging state agencies to be careful with their spending since revenues fell 11.3 percent short of expectations in July, the first month of the current fiscal year.

    Lawmakers put restrictions on Internet drug sales in the last session. Fisher said he plans to push for more legislation in the next session and and continue training programs for local law enforcement officials.

    Two thoughts: first, this is a typical alarmist article from the media.  I suppose I shouldn't be surprised at the Clarion Ledger pushing hysteria about meth labs and drug overdoses.  But, I'd rather see some real data.  Which leads to my second thought: I think it's quite a logical leap to say meth labs and prescription drug abuse are on the rise based only on the number of arrests.  Maybe MBN is simply operating more effectively.  Again, real data would be interesting.

    Mississippi Criminal Defense (Law) Blog

    According to my research, I've been publishing the Mississippi Criminal Defense Law Blog for 1 year, 3 months and 20 days.  I've averaged between 1 and 2 posts a week over that time.  Certainly I haven't spent all my time here, but I would say I've made an effort to provide what I consider an informative criminal law source to Mississippi residents. 

    I also follow a number of other bloggers, both locally and nationally, and I poke around every now and then to see if anyone new has popped up.  I did that this morning, and I admit I found myself slightly irritated to discover a new criminal law blog in Mississippi.  Not that I have anything against other criminal law attorneys, nor do I believe that I have a corner on the blogging market.  In fact, I have links to a number of Mississippi blogs in my Blogroll to the left. 

    I'm irritated because another attorney set up a blog with a title almost identical to the title at the top of this page.  You can now visit me on the Mississippi Criminal Defense Law Blog, or go looking for my blog and stumble upon the uniquely titled Mississippi Criminal Defense Blog.  I find it difficult to believe that the attorney who began blogging there barely two weeks ago, on July 2, 2009, wasn't aware of this blog or its name.  I actually find it more plausible that the nearly identical name was chosen to trade on the established visibility of this blog.  Like I said, that irritates me.

    The internet is a wide open place, and I have no control over this attorney or his choice of a blog title.  But that doesn't stop my irritation at his choice - my initial reaction included visions of a parasite.
      I guess all I can do is wish him luck, it isn't easy to build a web presence from the ground up.

    Sotomayor and Civil Forfeiture

    After following the Sotomayor soap opera that was the Senate Judiciary hearings last week, I came across an interesting document published by The Alliance for Justice that can be found here. That report details many aspects of Sotomayor's criminal justice record, including her tendencies to rule in favor of the government on 4th and 5th Amendment issues, her affinity for finding harmless error, and her willingness to entertain challenges to government forfeiture. Below are some tidbits from the document relating to her rulings in civil forfeiture cases.

    Her rulings for claimants and for the government are well-balanced and highlight her strict adherence to analyzing claims on a case-by-case basis. For example, in Krimstock v. Kelly, 306 F.3d 40 (2d Cir. 2002), cert. denied 539 U.S. 969 (2003), Sotomayor held that New York's vehicle forfeiture process violated the Constitution. She argued that since a vehicle is intimately connected to a person's livelihood, the forfeiture process must include a prompt neutral fact-finder to satisfy a claimants due process rights. Because it did not, the process was unconstitutional.

    She has also shown a willingness to hold the government's feet to the fire when meeting their burdens at forfeiture proceedings. She has ruled in favor of claimants when the government has failed to prove a sufficient nexus between proceeds and illegal activity. United States v. Capoccia, 503 F.3d 103 (2d Cir. 2007). Additionally, she has been reluctant to give the benefit of the doubt to the government when questions of fact remain as to the source of forfeited funds. United States v. 9,380 in US Currency, 1999 U.S. App. LEXIS 22958 (2d Cir. Sept. 16, 1999).

    However, on many occasions Sotomayor has ruled in favor of the government, illustrating her to be a judge who looks very closely at the facts. In United States v. $557, 933.89 More or less in U.S. Funds, 287 F.3d 66 (2d Cir. 2002), Sotomayor upheld the administrative forfeiture of money orders at an airport, and found that the claimant's 4th Amendment rights were not violated despite the lack of a warrant.

    Overall, Sotomayor has far more practical criminal experience than any of the current Justices. This experience combined with her reputation as being a judge with strict adherence to precedent and procedure should make for well-reasoned, real-world decisions. Finally, because Sotomayor puts such emphasis on the facts and context of the cases she hears, both claimants and law enforcement should be ready to recall all relevant facts (whether helpful or harmful) in order to succeed in proceedings before her.

    Fumbled Forfeiture

    Current forfeiture law promotes the violation of constitutional rights for economic gain, especially for drug cases. Additionally, because of the State’s potential economic gain attached to drug cases, forfeiture law allows government and law enforcement to remain complacent with the lack of progress on the War on Drugs.

    Kevin briefly described the backwardness of forfeiture earlier this year, here. Basically, forfeiture allows law enforcement to take property that is used or intended to be used in connection with illegal activity for its own use. Kevin also pointed out the glaring conflict of interest when police officers have financial incentive attached to their investigations. I wanted to probe these policy flaws a bit further
    .

    First, forfeiture threatens the protections against illegal searches and seizures guaranteed by the Fourth Amendment by allowing police officers to retain the financial benefits of forfeiture despite the outcome of the related criminal prosecution. In Mississippi, a claimant does have the opportunity to explain a legitimate source for the funds, but courts are not always convinced.  That’s right, folks, even if criminal charges are dropped or the defendant is innocent, police (under federal jurisdiction and a few state jurisdictions) can still keep the goods, i.e. money or real estate.
    Bennis v. Michigan, 516 US 442 (1996) (holding that car jointly owned by husband and wife was forfeitable despite wife’s innocence in crime of which husband was found guilty).

    This little loophole exists primarily because forfeiture moves fluidly from higher criminal standards to lower civil standards. First, in order to seize property, police must have “probable cause” that the property is connected to the illegal activity. Subsequent to law enforcement’s seizure, the criminal defendant may attempt to regain his or her property through a forfeiture proceeding. Yet, the State must only prove by a “preponderance of the evidence”—a civil standard less demanding than the criminal standard of probable cause—that the property was used or was intended to be used in violation of the law.
    Blumeson and Nilsen, THE NEXT STAGE OF FORFEITURE REFORM 14 Fed.Sent.R. 76 (Sept. 2001).

    Because the forfeiture proceeding is a civil matter, criminal violations such as illegal searches and seizures hold no legal significance. Boudreaux and Prtichard, CIVIL FORFEITURE AND THE WAR ON DRUGS, 33 San Diego L.Rev. 79 (1996); See also One Lot Emerald Cut Stones v. United States, 409 U.S. 232 (1972) (holding that double jeopardy claims are not valid in civil forfeiture proceedings as they are criminal issues). Furthermore, that item’s connection to illegal activities may fail to meet the probable cause standard in the criminal world and thus be excluded from trial; however, the police may still retain the item by meeting the lower preponderance standard in the civil proceeding.

    So, perhaps an over-zealous or morally flexible police officer may be willing to conduct a warrantless search predicated on mere hunch, knowing that even though the criminal case is ruined by a constitutional violation, he and his department can still keep the couple grand found in a Mason jar labeled “Summer Vacation Savings”. With job security and the financial stability of state budgets both plummeting, it is not beyond belief that agencies and individual officers may put a lower emphasis on protecting constitutional guarantees, and a greater emphasis on having enough money to stay afloat. Christopher Buckley's words ring loud with practicality, "We all have mortgages to pay".

    Forfeiture also indirectly threatens public safety, specifically regarding illegal drug investigations. We’ve all seen enough TV and movies to know that drug sales don’t happen overnight. Many steps have to take place before drugs are turned into money; manufacturing, transportation, and distribution are just a few. That being said, a police raid that results in the seizure of drugs and paraphernalia is useless compared to a raid that results in large sums of cash. In the former scenario, the police cannot resell illegal drugs and paraphernalia, but instead must destroy such items. On the other hand, cash forfeitures provide immediate financial relief.

    As a result, law enforcement who are covertly investigating and monitoring illegal drug activity are more tangibly rewarded for busting dealers later in the operation, once the drugs have been turned to cash. Blumeson and Nilsen. However, when police wait for the cash to roll in before making a bust, they must accept the fact that the drugs have already been sold and used. Forfeiture therefore pulls attention away from rehabilitating addicts and decreasing the supply of available drugs. Id.  Instead, because it is more lucrative for police to bust dealers who have already sold their stash, forfeiture focuses law enforcement’s attention on the proceeds of the drug trade. Commenting on this backward incentive structure, Patrick Murphy, the former Police Commissioner of New York, has noted that more roadblocks were placed on the southbound lanes of I-95 around NYC, which carry the money to buy drugs rather than the northbound lanes, which carry the drugs themselves. Id. citing Richard Minter, Ill Gotten Gains, 25 Reason 32, 34 (Aug/Sept 1993).

    So, in twist of irony, the War on Drugs has become a financial crutch for many police departments. As certain as our society is that drugs are destroying families and ruining lives, that society must also admit that the same drugs provide many positive qualities, such as bankrolling State institutions and supporting law enforcement.

    Caleb Ballew - Guest Blogger

    I have lately had an intern from the University of Mississippi School of Law working with me in my practice.  He has proved helpful in a variety of areas, and additionally expressed his interest in writing some guest posts for the blog.  As my intent behind the blog is to provide timely and informative discussion of criminal law issues in Mississippi, I figured another voice couldn't hurt.  So, without further explanation, I'd like to introduce you to Caleb Ballew, a rising 3L at the Ole Miss School of Law.  I have given Caleb freedom to choose his own topics and interests, and I look forward to hearing his opinions. 

    And one final caveat/disclaimer - Caleb's opinions and analysis should not be construed as representing my opinions or the opinions of this firm.

    Criminal Law News Update

    On Tuesday The Daily Mississippian ran this story detailing recent events in a case in which I am involved.  The headline reads "Ole Miss student found innocent."

    Crime Lab Analysis and Trials

    Yesterday the United States Supreme Court issued its opinion in Melendez-Diaz v. Massachusetts, read it here.  The decision will have a major impact on criminal trials in Mississippi involving crime lab data, as the court, in an opinion penned by Justice Scalia, held that crime lab certificates may not be admitted as evidence against a defendant without the accompanying testimony of the analyst. 

    The legal issue here is the defendant's right to confront his accuser set forth in the 6th Amendment.  The 6th Amendment states the following: 
    In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.
    The clause emphasized above is commonly called the "confrontation clause."  The Supreme Court based Melendez-Diaz on its previous ruling in Crawford v. Washington which held that "a witness’s testimony against a defendant is...inadmissible unless the witness appears at trial or, if the witness is unavailable, the defendant had a prior opportunity for cross-examination."

    It is common practice in many Mississippi courts to admit the crime lab report without testimony from the analyst.  In some courts, if the defendant requests the analyst be present to testify the court orders that defendant to pay for the analyst's time.  The ruling in Melendez-Diaz places this burden on the State by holding that the prosecutor must produce the analyst for cross-examination.

    See additional commentary from the SCOTUS Blog here and the Wall Street Journal Law Blog here.

    We already knew this, but still...

    ...I was surprised to find a police chief willing to admit tickets were being written to assist a city budget during the economic downturn.  This story from the Clarion Ledger today details the Petal Police Chief's disagreement with the Petal Mayor and Board of Aldermen, an excerpt:
    Police Chief Lee Shelbourn said Monday he was told to double the number of citations and set up more roadblocks to help ease Petal's budget crisis.

    But Mayor Carl Scott and the Board of Aldermen deny giving such instructions.

    Shelbourn would not disclose who gave him the instructions. He said his department did as it was told but isn't planning to do it anymore.

    "The Police Department is not supposed to be a money-making organization," he said. "Our purpose is to provide public safety to the citizens of Petal ... to where they can feel safe at night."

    The denials from the city administration came swiftly after Shelbourn's comments were posted Monday at www.hattiesburgamerican.com.

    "Nobody can tell the chief what to do by state law," said Mayor Carl Scott. "Anybody can have discussions with him, but you can't tell him what to do."

    The reality of traffic tickets being used to pad local government budgets isn't surprising, but it is surprising and refreshing to see a local dispute of this sort detailed in the news.

    The Local Voice: Local Favorites Awards 2009

    Stepping slightly off topic for today, I want to express my appreciation to the readers of The Local Voice for recognition in the Local Favorites Awards 2009.  I was interested to see the tie with Oxford's most infamous attorney, but happy for the good company of Tom Freeland, aka "NMC", Jay Carmean, Rosy Posey and Lucky atop the favorite attorney category.  I see many friends on the list in a variety of categories - I encourage you to review the listings for yourself.  Congratulations to all the favorites, and special shout-out to Holli's Sweet Tooth, winner of the Dessert category and home of the best lemon sorbet in town!

    ATTORNEY
    1. (TIE!) Dickie Scruggs, Kevin W. Frye (13%)
    2. Tom Freeland (10%)
    3. Jay Carmine (8%)

    Rosamond Posey (5%)
    Lucky Tucker (5%)

    Mississippi's Constitutional Right to Bail

    I have discussed the routine steps of a criminal prosecution in a previous post: If I am arrested for a crime, what happens to me next?  Generally, after being arrested, the first concern of a person accused of a felony is making bail.  The setting of bail following arrest is controlled by the Constitution of the State of Mississippi.  Specifically, Article 3, Section 29 provides that:
    Excessive bail shall not be required, and all persons shall, before conviction, be bailable by sufficient sureties, except for capital offenses (a) when the proof is evident or presumption great; or (b) when the person has previously been convicted of a capital offense or any other offense punishable by imprisonment for a maximum of twenty (20) years or more.
    The Mississippi Supreme Court has held that "[t]he constitutional right to bail before conviction has become so fundamental that it is favored by the public policy of the state."  Lee v. Lawson, 375 So.2d 1019
    (Miss. 1979).  The Court has also held that the purpose of bail bonds is to insure the defendant's presence at trial, and has listed nine factors which are to be taken into account by the lower court when considering bond, those being:
    1. the seriousness of the crime charged;

    2. the extent of punishment by Mississippi statute;

    3. criminal record and record on bail, if any;

    4. reputation and mental condition;

    5. length of residence in the community;

    6. family ties and relationships;

    7. employment status and record of employment and financial condition;

    8. the identity of responsible members of the community who would vouch for his reliability; and

    9. any other factors that bear on the defendant's mode of life or ties to the community which would involve his failure to appear.

    Ex parte Dennis, 334 So. 2D 369, 373-74 (Miss. 1976).  Additionally, the Dennis Court stated “[t]he justifiable premise for bail is that its denial punishes prior to a guilty verdict while an accused is clothed with the presumption of innocence.”  Id. at 371.  Thus, in the vast majority of circumstances an accused is given a bond amount and when that amount is posted is freed on bail until the next court date.

    Arizona v. Gant: Supreme Court ups 4th Amendment Standard in Vehicle Searches

    Yesterday the Supreme Court of the United States scaled back exceptions to the 4th Amendment granting police the authority to search a vehicle without a warrant following the arrest of a suspect.  In Arizona v. Gant, found here, the Supreme Court addressed a scenario where the suspect "was arrested for driving with a suspended license, handcuffed, and locked in the back of a patrol car, police officers searched his car and discovered cocaine in the pocket of a jacket on the backseat." 

    The issue before the Court was whether this warrantless search fell within any of the existing exceptions to the 4th Amendment ("The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.").  Justice Stevens, writing for the majority, held that previous exceptions to the 4th Amendment do "not authorize a vehicle search incident to a recent occupant’s arrest after the arrestee has been secured and cannot access the interior of the vehicle."

    For additional analysis and commentary on the opinion visit Simple Justice, Defending People, and a public defender.

    DUI while driving a bar stool...

    ...it can happen in Ohio.  The story can be found here, on thesmokinggun.com, which reports "Ohio cops this month arrested a man for drunk driving on a motorized bar stool. That's right, a motorized bar stool..."  The picture is priceless.



    While there are quite a few funny DUI stories, the reality is that there are a number of consequences if you are convicted of driving under the influence in Mississippi.  Always know your rights, and be aware of what the police are looking for in a typical DUI traffic stop.

    Eyewitness Identification - Imperfect to say the least...

    I happened upon this fascinating read on Slate today.  An excerpt:

    Describe the last person who served you a coffee. What if I helped refresh your memory? Showed you some photos of local baristas? Pulled together a helpful lineup? Cheered exuberantly when you picked the "right" one? Now imagine that instead of identifying the person who made your venti latte last week, we had just worked together to nail a robber or a rapist. Imagine how good we would feel. Now imagine what would happen if we were wrong.

    Last month, a Texas judge cleared Timothy Cole of the aggravated sexual assault conviction that sent him to prison in 1986. Although his victim positively identified him three times—twice in police lineups and again at trial—Cole was ultimately exonerated by DNA testing. The real rapist, Jerry Wayne Johnson, had been confessing to the crime since 1995. Unfortunately, Cole died in prison in 1999, long before his name was cleared.

    Our eyes deceive us. Social scientists have insisted for decades that our eyewitness identification process is unreliable at best and can be the cause of grievous injustice. A study published last month by
    Gary Wells and Deah Quinlivan in Law and Human Behavior, the journal of the American Psychology-Law Society, reveals just how often those injustices occur: Of the more than 230 people in the United States who were wrongfully convicted and later exonerated by DNA evidence, approximately 77 percent involved cases of mistaken eyewitness identification, more than any other single factor.

    The story doesn't qualify as news, as the data has been known for some time.  But it is an interesting analysis of one flaw in our justice system and a reminder to us all that reasonable doubt isn't always reasonable.  I recommend reading the entire piece.

    Mississippi Criminal Law News Roundup

    This month has been busy for me, so I've neglected the blog a bit.  While I've been working a number of interesting stories have emerged in Mississippi criminal law.  They have all been covered elsewhere, so here's a quick roundup.

    First, Scruggs II (if you don't know what this is you should take some time to learn) has had a great number of very interesting developments, including guilty pleas, sentencings and a new indictment.  Check out the archives at
    folo for all the news and informed commentary you can handle.

    Second, a Jackson blogger has been keeping tabs on a local Lafayette County Assistant District Attorney.  Check out Jim Craig's World and his interesting posts,
    (1), (2) and (3), on Lafayette County ADA Tom Levidiotis.

    Finally, Jim Craig's World has also picked up on one of my posts from November where I discussed the "
    Mississippi Department of Corrections, Budget Cuts & Plea Negotiations".  He posts here about a recent court ruling which may require California to release a large percentage of its prison population due to overcrowding.  That post is followed by one which reviews my discussion of the Mississippi prison population, here.

    Happy reading!

    Incarceration Policy and the Justice System

    The American Bar Association has published this essay discussing America's ever-expanding prison population and its negative impact on the justice system.  An excerpt:

    At midyear 2007, U.S. prisons and jails held 2,299,116 inmates, meaning more than 1 percent of American adults were incarcerated. We top the world in per capita imprisonment, increasing our lead every year. Since 2000, while the total U.S. population increased by 7 percent, our prison population has grown by 19 percent. Our massive imprisonment costs needless billions and, perversely, hinders effective crime control. We need to re­duce our prison population...

    A rational criminal justice system would—while shortening sentences of certain offenders—keep others out of prison altogether. With alternative treatments and punishments, a state shrinks its prison budget, allows convicts to keep their jobs and support their families, and makes recidivism less likely.

    But alternative programs work only when properly funded. A state spending every dollar on prisons may think it cannot afford drug treatment programs and fully staffed probation offices, especially when the economy demands budget cuts. The opposite is true: States cannot afford to neglect these programs or they will pay down the road tenfold—in prison costs, welfare budg­ets and elsewhere. Beyond monetary costs, cit­izens will suffer needless increased crime when of­fenders who never belonged behind bars eventually return to the community more dangerous than before...

    My previous post, Mississippi Department of Corrections, Budget Cuts & Plea Negotiations, addressed the expense of incarceration in Mississippi as opposed to alternative methods of punishment, and detailed the Mississippi Department of Corrections' new cost-saving measures.  Let us hope that as our country grows older and wiser our thoughts on criminal punishment continue to mature as well.

    Mississippi Legislature Considers Ignition Interlock Devices For DUI First Offense

    Pressured by MADD (Mothers Against Drunk Drivers), the Mississippi Legislature is considering a bill which would mandate ignition interlock devices as a penalty for a first-offense DUI conviction.  MADD is known to advocate over the top penalties for drinking and driving, and forced installation of ignition interlock devices is more of the same.  The Commercial Appeal has this story, an excerpt:

    First-time convicted drunken drivers would have to install devices on their vehicles that would prevent them from driving if they are legally drunk under a bill unveiled Wednesday.

    Current Mississippi law requires the ignition interlock devices for second and subsequent drunken driving convictions. The legislation would require the devices after a motorist's first drunken-driving conviction.

    Ignition interlock devices don't work, and they are a poor policy solution.  What's to stop a person with a DUI conviction from driving a different vehicle?

    New Racial Profiling Law in Mississippi?

    The Mississippi Legislature is considering a law which would ban racial profiling in Mississippi (the ACLU has this information describing racial profiling).  The proposed legislation would impose a fine up to $1,000.00 and/or prison sentence up to 1 year upon officers who engage in racial profiling and would require law enforcement agencies to "keep accurate records of all traffic stops and detentions identifying the reasons for the stops and the race of the person being stopped or detained."

    The Clarion Ledger has
    this article - some excerpts:

    Several Mississippians told a state House panel Tuesday they had been victims of racial profiling and asked legislators to toughen laws against the practice.

    Two metro-area police chiefs testified they believe racial profiling is occurring in the state, while Jackson's chief questioned the need for legislators' involvement.

    "A lot of folks think just because they've not experienced it, it doesn't exist," said House Judiciary B Committee chairman Willie Bailey, D-Greenville.

    Mississippi is one of about 25 states with no law on racial profiling. Others have laws that define the practice, and some mandate that law enforcement keep traffic stop records that include the race of those who are stopped and searched by police.

    Ridgeland Police Chief Jimmy Houston, who is white, and Canton Police Chief Robert Winn, who is black, both testified they believe racial profiling is a problem in Mississippi.

    "We can't deny the fact that it's happening," said Winn, whose own department faced allegations of profiling in 2004 when an officer was accused of shaking down Hispanic residents for money. The officer eventually pleaded guilty to extortion.

    Houston said he has conducted two officer investigations in the past six months related to profiling. "The last one has resulted in the dismissal of a young officer," he said.

    The Legislature should be commended for discussing this critical issue.

    Subscribe to the Mississippi Criminal Defense Law Blog

    For those who are regular readers, or semi-regular readers, or maybe those who simply happen across the blog once and think I might post something of interest in the future...I'd suggest that you enter your email address in the "Subscribe" box near the top of the page.  Each new post will be delivered to your email address for you to read at your leisure.  If you use an RSS reader this is certainly not necessary, but if you have no idea what an RSS reader is I'd suggest that the simple step of subscribing to the blog is the easiest way to stay current on my posts.

    Mississippi Forfeiture Law

    My criminal practice includes a number of felony drug cases - defendants charged with possession, possession with intent, or sale of a controlled substance.  Often these cases come with an added twist.  A forfeiture proceeding.  Mississippi law allows a wide variety of property to be seized, and potentially forfeited, when it is alleged to be connected with a violation of controlled substances laws.  To effect a forfeiture the State must essentially prove, by a preponderance of the evidence, that an item of property was "used" or "intended to be used" in violation of the law.

    Some items of property subject to forfeiture are intuitive - drugs, drug containers, paraphernalia and items used to manufacture drugs are all routinely forfeited.  However, some items are more difficult to understand.  For example - vehicles, money, books and real estate.  The Clarion Ledger recently published an article describing the forfeiture successes of the Hattiesburg Police Department, found
    here.  An excerpt:

    The Hattiesburg Police Department has picked up about $1.4 million in forfeiture money over the past several years. 

    Documents show the department used the money for new vehicles and other equipment, along with training materials and machinery tools...

    The department received the most forfeiture revenue in the 2007 fiscal year - $473,625.

    In 2006, HPD saw $386,626 in forfeiture funds, preceded by $162,716 in 2005 and $237,852 in 2004.

    Revenue decreased during the 2008 fiscal year to $120,759.

    For the current fiscal year, which began Oct. 1 and ends Sept. 30, the department has received $7,890, according to the most recent numbers.

    "These funds don't replace our agency's normal budget (but) may be used for any law enforcement purpose," Misenhelter said.

    The funds are a tremendous help, especially with the recent state budget cuts, said Hattiesburg City Council President Kim Bradley.

    The policy of forfeiture raises a number of thorny issues.  One of the biggest surrounds the inherent conflict that arises when forfeited property directly benefits the officers making the seizure.  The substantial property and funds seized by law enforcement in many instances are used to buy equipment for those very officers.  And those nice cars you see being driven by police, the Camaros and Escalades, forfeited property. 

    Certainly then it is not in the best interest of law enforcement to admit that any particular seizure was errant, especially during this difficult economic climate.  That much is made clear by the Hattiesburg City Council President's quote above.  Further, the law itself encourages prosecutorial overreach by incorporating the "intended to be used" language.  Almost any scenario involving a vehicle or cash can easily lend itself to a State argument that the property was "intended to be used" in violation of the law.

    The Critical Decision: Trial or Guilty Plea?

    I've been following an interesting and most important discussion between some fellow criminal law bloggers.  The issue is the sentencing disparity following a guilty plea as opposed to following trial.  Those involved in the criminal law system are well aware of this practice - prosecutors routinely recommend plea deals far superior (if less time = superior) to those recommended following a guilty verdict at trial.  Scott Greenfield aptly describes the issue on his blog Simple Justice, an excerpt: 

    Theoretically, a person should not be penalized for the exercise of a constitutional right, for to do so would be to undermine and negate the existence of that right.  But how then can one explain why the same person, whose alleged criminal conduct is well known to prosecutor and judge alike in advance of trial, is offered a sentence of 5 years (for example) before trial, but should he lose at trial, will be sentenced to 20 years?  The only intervening event is a trial, a right guaranteed by the 8th Amendment to the Constitution.  The defendant has done nothing more than fulfill his duty as an American by putting the government to its proof...

    ...Systemically, courts cannot admit that there is such a thing as the trial penalty, for to do so would be to concede that the system is inherently wrong and, indeed, unconstitutional.  But as we all know, it's real, it's there and it's a possibly the most significant part of the discussion between lawyer and client about whether to plead guilty or go to trial.  So when our "tough on crime" politicians and their supporters demand ever-increasing sentences of incarceration, it would behoove them to consider that these aren't really the sentences that judges are expected to impose, despite all the ugly rhetoric about how we need to lock people away forever to protect ourselves and our children.  Rather, the top sentence is the wedge to be used to strike fear in the hearts of defendant[s], guilty and innocent alike, to forgo the exercise of their right to trial and, should they lose, be compelled to pay the trial penalty.

    I recommend Scott's entire piece, found here.  As for the effect of this practice locally - the Lafayette County Circuit Court has disposed of more than sixty felony cases in the past six working days without a single trial.  Every case has been disposed of by plea.  This can primarily be attributed to the hiring of a new Assistant District Attorney and the announced policy of plead now or go to trial and expect a recommendation of the maximum punishment thereafter.  I agree with Scott's conclusion:

    ...our system imposes a very hefty penalty on the defendant who seeks to put the government to its proof, with no cognizable purpose other than to dissuade a defendant from doing so.  The sad fact is that many defendant[s], indeed most, will decide against "rolling the dice" by going to trial, even though they may be innocent or have a good defense, because of the enormous cost of losing.  Twenty years in prison may not have much of an impact on the decision to engage in criminal conduct, but it can have an awfully big impact on the decision to take a case to trial.

    Mississippi Model Jury Instructions Commission

    The Mississippi Supreme Court has announced the creation of the Mississippi Model Jury Instructions Commission which aims to simplify existing jury instructions by replacing them with "plain language" instructions.  This is certainly a welcome announcement.  The existing instructions are anything but simple - they are flat-out confusing to jurors who are expected to render judgment on the lives of others.  The Memphis Commercial Appeal has this story - an excerpt:

    The problem of confused jurors rendering poor verdicts has plagued courtrooms in Mississippi and across the country for decades.

    Many states — among them Florida, California, Texas and Vermont — have sought to rectify the situation by rewriting jury instructions into plain English...

    Now a commission led by Mississippi Supreme Court Justice George C. Carlson Jr. will tackle the issue.

    Carlson said his experience as a lawyer, trial judge and appellate judge has shown him that "the focus has not been on the very ones whose understanding of the law is critical to the fair disposition of any case, namely the lay citizens in the jury box."

    Jury instructions are the combined effort of prosecutors, defense attorneys and the judge.

    Generally, they follow existing "pattern" instructions for each charge. Legal experts say most judges prefer to stick close to boilerplate language because it usually tracks the statutes and has passed muster with appeals courts.

    In the 1980s, research found many jurors had difficulty understanding and applying the law to the facts.

    The problem was recognized much earlier.

    In 1954, Massachusetts District Judge Charles E. Wyzanski Jr. wrote in a civil case that the "object of a charge to a jury is not to satisfy an appellate court that you have repeated the right rigamarole of words, but to try to make jurors who are laymen understand what you are talking about."

    More than 50 years later, the work continues.

    A list of the Commission members can be found on The Mississippi Bar Association website, here.  Let's all hope the Commission works quickly.

    On talking to the police...

    I have posted more than once that talking to the police in a routine traffic stop or other encounter is a bad idea.  Not surprisingly, this is an often reprised subject on other blogs as well.  Today I ran across a great post on this topic by Robert Guest, who publishes the Dallas Criminal Defense Lawyer Blog.  His post — "your cop is not cool" — hits on something I experience with many young clients.  An excerpt from his post:

    Cool Cop/De Minimis Arguments- A very misguided hope that their cop will be "cool" and let the suspect go. Related to the "I just had a joint in my car, I thought I would get a warning", de minimis justification.

    Most people expecting a cool cop have a story to tell about another cop who was cool, and let them or a friend go. A word to the public- your cop is not cool.

    Most officers, especially traffic enforcement (DPS etc) live for drug searches. If DWI is the capital murder of traffic stops, then finding drugs is like solving a bank robbery. Cops love finding drugs. Watching their excitement on film leads me to believe some get high on busting drug users.

    Don't consent to a search or volunteer information about contraband. Consider, instead, asking for an attorney or refusing a consent search.

    I know you are nervous. I know that you think the recreational use of drugs is not a reason to arrest someone. But cops don't think like that. The love arresting you, and they aren't cool.

    Robert's point is that cops have a job to do, and that job doesn't include a polite slap on the wrist.  In Oxford this "cool cop" scenario comes up regularly because (1) college students make up a significant portion of the population and (2) a good number of local law enforcement officers are young men and women.  Apparently, for college students, talking to a cop that is a member of their generation gives them a false sense of security.

    Drug Bust by Oxford's Metro Narcotics Unit

    The Oxford Police Department's Metro Narcotics Unit made more than 17 arrests on Thursday and Friday in a sting operation.  The Oxford Eagle published the following story, which can be found here.
    In its second operation of the year, the Lafayette Count Metro Narcotics Unit busted 15 University of Mississippi students Thursday for selling drugs.

    The four-month long undercover operation led to the arrest of 17 people Thursday for various charges of selling marijuana, selling cocaine, sale of ecstasy and possession of the same.

    Fifteen of those arrested were Ole Miss students, according to information provided by Metro.

    On Thursday, Metro Narcotic officers confiscated one handgun during the roundup and $11,661 in cash.

    In the March operation, 13 people were arrested for dealing drugs, including five Ole Miss students.

    The total number of cases investigated from January through November has been 224.

    “Operations of this caliber could not be done without the help and cooperation of all the local, state and federal agencies in our area,” said Cmdr. Searn Lynch.

    I don't have the time or space to cover all of the potential ramifications of an arrest for the sale of the various drugs mentioned in the story.  But, the information I have about this "round-up" is that the majority of the arrests were for the sale of small amounts of marijuana.  The Mississippi Code, Section 41-29-139 (full text found at the preceding link), provides the penalties for sale of marijuana and other drugs - Section 41-29-139(b)(3) provides that in the case of a sale "of thirty (30) grams or less of marihuana, such person may, upon conviction, be imprisoned for not more than three (3) years or fined not more than Three Thousand Dollars ($3,000.00), or both."  So, for those arrested in the drug bust this week and charged with the sale of 30 grams or less of marijuana, the maximum penalty is 3 years in prison and a $3,000.00 fine.  For persons charged with multiple sales, sales larger than 30 grams, or sales of drugs other than marijuana, the penalties only increase.

    A previous post which details the progression of a criminal prosecution may be relevant to some readers:
    If I am arrested for a crime, what happens to me next?

    Mississippi Department of Corrections, Budget Cuts & Plea Negotiations

    The Mississippi Department of Corrections (MDOC) has announced that it will release some inmates early, and place others on house arrest, in an effort to cut costs.  An excerpt from today's Clarion Ledger story:

    About 300 state inmates will be removed from county jails, 154 from regional jails and 50 from private prisons beginning as early as January as the Mississippi Department of Corrections trims its budget by $6.5 million.

    MDOC will further reduce cost by increasing the number of inmates on house arrest and parole. Roughly 1,225 inmates are on house arrest and 3,000 are on parole.

    "We have sent a list of 2,900 nonviolent inmates to the Parole Board," Corrections Commissioner Chris Epps said of those who could be considered for early parole.

    The cost of housing inmates is substantial, and I find it encouraging in these slow economic times that MDOC plans to increase the number of inmates in "alternative" incarceration (such as house arrest).  The Department's own figures show that these programs are substantially less expensive than traditional incarceration.  According to MDOC numbers from the 2007 fiscal year housing an inmate at Parchman costs $45.48 per day, while the Intensive Supervision Program (house arrest) costs just $9.96 per day.  Clearly a cost savings of $35.52 per day (Yes, I did the math for you.) is substantial.  The cost difference between housing an inmate for one year in Parchman versus one year on house arrest?  $12,964.80.

    Why is this story important?  First, I certainly support the early release of inmates to cut costs - in fact, I'd support the decision even if we weren't in a terrible economic crises.  Second, I represent clients charged with various felonies, many of whom are eligible for house arrest.  Further, in many of those cases house arrest may be the desired outcome for my client (and for the taxpayer!).  In those cases where plea negotiations are appropriate, this decision by MDOC may prove to be an additional bargaining tool with the prosecutor or judge.

    Hazing & Criminal Penalties

    Today the Clarion Ledger published this article detailing the indictment and prosecution of eleven University of Southern Mississippi students on charges of conspiracy and hazing.  Some excerpts from the article:

    University police served indictments Thursday on 10 students. The 11th was out of state and will be served next week, police said.

    They are charged in an Aug. 28 incident at the Kappa Sigma fraternity house during a "Little Sister" initiation. Each is charged with conspiracy to commit hazing, two counts of first-degree hazing and one count of second-degree hazing...

    One of the victims spent more than two weeks in intensive care at Forrest General Hospital. The second was treated and released.

    The mother of the victim who remained at the hospital said her 19-year-old daughter attended the initiation at Kappa Sigma. She said part of the initiation included syrup poured in her daughter's hair and vodka poured down her daughter's throat with her head tilted back. Her daughter, a sophomore from Waveland, had a blood-alcohol content of 0.47, which is more than five times the legal limit.

    The university revoked Kappa Sigma fraternity's charter and closed the house on campus a week after the incident.

    The Forrest County grand jury met last month, District Attorney Jon Mark Weathers said. An indictment is not made public until those charged are officially notified or arrested.

    The blog has previously discussed the crime of conspiracy — more information can be found here.  As for the crime of hazing, Mississippi law states that a person is guilty of hazing in the first degree when "in the course of another person's initiation into or affiliation with any organization, he intentionally or recklessly engages in conduct which creates a substantial risk of physical injury to such other person or a third person and thereby causes such injury."  A person is guilty of hazing in the second degree when "in the course of another person's initiation into or affiliation with any organization, he intentionally or recklessly engages in conduct which creates a substantial risk of physical injury to such other person or a third person."  Penalties range from a $1,000.00 fine to 6 months in jail and a $2,000.00 fine.

    Expunging a Misdemeanor Conviction

    I field numerous calls from people interested in having a misdemeanor conviction expunged from their record.  For those not familiar with the term, "expunge" simply means to erase the record of the conviction.   A typical request is to expunge a conviction for public drunk, minor in possession, possession of drugs or other paraphernalia or simple assault.  People make the request for various reasons, but often they are concerned that their conviction will appear on a background check and may negatively impact their employment or professional licensing opportunities.

    Mississippi law allows the following, in pertinent part, relating to expunction of a misdemeanor conviction:

    Any person who has been convicted of a misdemeanor, excluding a conviction for a traffic violation, and who is a first offender, may petition the...court...for an order to expunge any such conviction from all public records... The effect of such order shall be to restore such person, in the contemplation of the law, to the status he occupied before such arrest. No person as to whom such order has been entered shall be held thereafter under any provision of law to be guilty of perjury or to have otherwise given a false statement by reason of his failure to recite or acknowledge such arrest or conviction in response to any inquiry made of him for any purpose...

    If you have a misdemeanor conviction you should seriously consider having your record expunged.  As you can see from the applicable law, an expunction acts to place you legally in the same position as if you had never been convicted.  A first offender who has their record expunged may thereafter truthfully answer that they have never been convicted of a crime.

    DUI Arrest Video

    A friend forwarded a humerous DUI "arrest" video over the weekend which I thought I'd share.  My sources tell me this is a clip from the television show Reno 911. 




    While this video is very funny, a real DUI arrest and conviction certainly won't leave you laughing.  I have posted helpful information in the past relating to DUI arrests in Mississippi and would recommend that you take some time to read the following:

    Drinking & Driving in Oxford & Mississippi:
  • DUI Penalties in Mississippi
  • Zero Tolerance for Minors
  • A DUI Lawyer: Kind of...

    Ole Miss Alcohol Rules:
  • What are the Alcohol Rules on Campus - I'm Confused...?
  • "Changing the Culture": Ole Miss Alcohol Policy & Two Strikes Rule
  • Related Information:

  • Why Talking to the Police is a Bad Idea...Again
  • Should I Let the Cops Search My Car?
  • Field Sobriety Tests: What Are the Police Looking For?
  • Oxford & Ole Miss Crime Statistics

    The 2008 Annual "Student Right to Know Report" has been released from the University of Mississippi.  The Report details crime statistics from 2005 through 2007, and can be viewed here.  The Oxford Eagle yesterday reported on Oxford and Ole Miss crime statistics, and stated the following regarding crime in Oxford:

    For violent crimes in Oxford, one murder was reported in 2007, up from none in 2006, although down from two in 2005. Rape went from seven in 2005 to four in 2006 to eight in 2007. Robberies went from five in 2005 and four in 2006 to eight in 2007. Aggravated assaults jumped from 10 in 2005 and 12 in 2006 to 20 in 2007. Motor vehicle thefts saw a decrease, going from 34 in 2005 and 26 in 2006 to 20 in 2007.

    Liquor law violations went from 278 in 2005 and 316 in 2006 to 341 in 2007. Drug violations jumped from 72 in 2005 to 391 in 2007.

    As for crime on the Ole Miss campus, the Eagle reported that:

    The report showed no murders, negligent manslaughter, robberies or arson offenses reported to the UPD in 2005, 2006 or 2007. One rape was reported in 2005 and two were reported in 2006, but none reported in 2007. Also experiencing a slight decrease was aggravated assaults — from four in 2005, two in 2006, to none in 2007, and motor vehicle thefts — from four in 2005, two in 2006 to one in 2007.

    The only felony crime to increase in 2007 was burglary, which went from five reported in 2005, three in 2007, to 10 in 2007.

    Liquor law violations — excluding DUI and public drunkenness — were down, from 39 in 2005 to 35 in 2007 — although in 2006 there were only 20 liquor law violations. Drug violations increased from nine in 2005; 14 in 2006; to 17 in 2007. Weapon violations went from two in 2005 and 2006 to none in 2007.
    You can read the Eagle's full story here.

    Presidential Debate, Football and DUI Road Blocks

    Tomorrow Oxford and Ole Miss play host to the first Presidential Debate of this election (if McCain decides to appear - after all the town and University have gone through to prepare I sure hope he does).  Last week we played host to Vanderbilt's football team.  These two events seemingly have nothing to do with each other.  But, if the actions of the Mississippi Highway Patrol last weekend are any indicator of future action, I'd recommend that this week's visitors stick to walking.

    According to Paul Quinn of the Daily Mississippian, the Highway Patrol made more than 100 arrests.  Excerpts of his
    story follow:

    The Lafayette County Detention Center had a record crowd Saturday night after the Mississippi Highway Patrol set up a road block on Highway 6.

    Highway patrol Sgt. Leslie White said officers decided to set up a safety checkpoint on Hwy. 6 and were surprised at the number of arrests they made. An exact number could not be given Monday because White had not yet finished compiling the total numbers.

    Detention center administrator Gerald Clemons said the jail was hectic on Saturday night, with at least 130 inmates arrested that day.

    In all, over 100 people received DUIs last weekend, records show.  The records also indicate over 30 public intoxication arrests, and 25 other people were arrested for disorderly conduct, possession of a controlled substance or possession of paraphernalia.

    Newswatch station manager Elizabeth Vowell said she drove by the roadblock around 1 a.m.

    “From the amount of cars, I thought it was left over game-day parking.  It was the biggest road block I’ve seen,” Vowell said.

    Over the weekend, 36 of the arrests were made by OPD [Oxford Police Department],  nine of which were DUIs and three were public intoxication.

    On campus, UPD [University Police Department] wrote at least 14 public intoxication tickets over the weekend. According to UPD records, one student was taken to Baptist Memorial Hospital due to intoxication.

    I won't vouch for the accuracy of the numbers reported by the DM.  I doubt that any numbers provided on Monday were completely accurate.  What I will vouch for is the large number of persons I personally saw sitting behind the Lafayette County Detention Center all day Sunday.  There were approximately 30 folks sitting there at 12:30 p.m., when I came out of church, and still 20 or so when I drove by around 4:30 p.m.  Sunday was a long day at the jail.

    Finally, I'd again refer you to some relevant posts regarding alcohol consumption and penalties.  Specifically, posts detailing what police look for during field sobriety tests and whether to allow them to search your car.  I have previously gathered a number of these links in my post entitled
    Oxford, Ole Miss and Alcohol Consumption.  Here's to a safe and enjoyable debate weekend for all.

    Drug Paraphernalia

    On Monday, the Oxford Eagle ran an interesting article about drug paraphernalia in Mississippi.  Alyssa Schnugg, who wrote the article, called and asked me for some information regarding the law, which I was happy to provide.  I've excerpted that portion of the article below, although I recommend reading the entire article here.

    According to Mississippi Code, it is illegal to sell any tobacco and tobacco-related products to anyone under 18 years old.

    “(State code) is clear that you must be 18 years old in order to purchase a bong, pipe or other device used to ingest controlled substances,” said local attorney Kevin Frye.

    Even though these products — if sold to an adult — are legal, depending on circumstances, a person can still face criminal misdemeanor charges for possessing such items, Frye said.

    “It is a misdemeanor to deliver or sell paraphernalia to someone under the age of 18, as well as to possess an object which would be considered paraphernalia under the totality of the circumstances. It is not necessary for drugs or residue to be present for an object to be considered paraphernalia.”

    Frye said a person might be charged criminally based upon a number of factors, including statements concerning the use or intended use of the object; prior convictions; expert testimony and other direct and/or circumstantial evidence.

    “Possession of paraphernalia can lead to a maximum $500 fine and/or up to six months in jail,” he said. “Delivery or sale of paraphernalia to a person under the age of 18 can lead to a maximum fine of $1,000 and/or up to one year in jail.”

    Lafayette County Circuit Court to Return to Courthouse on the Square

    This morning the Lafayette County Board of Supervisors convened and re-visited their poor decision (see some previous posts herehere & here) relating to space utilization in the historic Courthouse on the Oxford Square.  I was in attendance, as promised, along with a fair number of local attorneys.  Following an entertaining (if you like to watch political trainwrecks) debate the Supervisors voted to return the Circuit Court to its long-time home and leave the Lafayette County Justice Court in its current space.  Additionally, the Board sought to clarify its previous indication that it would make room for civic organizations in the Courthouse.  Mike Pickens made a Motion, which passed on a 3-2 vote, which simply re-stated the pertinent law - that no space will be dedicated to civic organizations unless that property is first declared surplus by the Board.  I expect that this issue isn't dead yet.

    Alyssa Schnugg of The Oxford Eagle has this story — some excerpts:

    The Lafayette County Bar Association filed a motion to appeal the supervisors’ decision, claiming the circuit court should be put back into the courthouse where it has been since the late 1800s. Several attorneys and citizens had filed a petition against the Board of Supervisors’ decision.

    A few days after the public responded so critically to the supervisors’ vote, Oliphant, who also serves as board president, announced he planned to change his vote to allow the circuit court to go back to the courthouse. He asked for the issue to be placed on this morning’s agenda for a re-vote.

    Brooke Newman, representing the Bar Association, thanked the Board of Supervisors for its change of heart.

    “I believe this is in the best interest of all Lafayette County citizens,” she told the board.

    The board also voted unanimously to allow the members of the Lafayette County Elections Commission to have space in the courthouse.

    In order for the county to allow non-county entities to use the building, it would have to be declared surplus property. Supervisor Mike Pickens made a motion to clarify that nonprofit civic agencies could not be moved over to the courthouse, as was voted on in August, since the property has not been declared surplus. Supervisors Oliphant and Morgan voted against the motion.

    After the vote, Morgan said he would like to see the county hire someone to do a space utilization study.

    My prediction, based on a number of comments during the meeting, is that the "space utilization" debate will not only continue, but that it will also continue to be a hot topic for public debate.  I'll keep you posted.

    Mississippi Highway Patrol: "Back to School" Ad Campaign

    Today marks the beginning of the fall semester at Ole Miss, and with it comes the first publication of the Daily Mississippian.  Among the ads for local clothing, food and music, one giant size ad caught my attention.  This threatening anti-DUI ad from the Mississippi Highway Patrol.  The theme of the ad — "Cruising Tonight? So Are We." — made me laugh.  I haven't heard of anyone going "cruising" since I was in high school.  Either I'm out of touch with the college age crowd, or the Highway Patrol is...

    Funny premise aside, my sources tell me that there was a significant increase in police presence in Oxford and Lafayette County over the weekend.  You can read my previous posts about alcohol and DUI's in Oxford (including more about the "DUI crackdown" and what police look for during a field sobriety test)
    here.

    The Drug War & Semi-Submarines

    This story, from The Christian Science Monitor, caught my attention today.  The story begins as follows:

    Drug cartels have turned to a new and effective vehicle to smuggle their goods, using small, homemade "semi-submersibles" that are hard to detect and yet effective at carrying millions of dollars worth of cocaine and other illicit drugs that end up in the United States.

    Military officials who oversee Latin and South America have grown alarmed by the increased use of these boats, which poke out above the water only a foot or so but carry more than 12 tons of cargo...

    The extraordinary efforts and expenses incurred on both sides of the "drug war" never cease to amaze me.  Personally, I'd prefer that the resources expended chasing submarines go toward other programs - my choice would be something like the local Drug Court, which by all accounts is operating with great success.

    Oxford, Ole Miss and Alcohol Consumption

    As the new school year begins I thought I'd re-post some selected links from the past on the topic of alcohol and the laws/rules relating to consumption in Oxford and on the Ole Miss campus.  These posts address various issues, including: alcohol related penalties, field sobriety tests and talking (or not) to the police.  Enjoy!

    Drinking & Driving in Oxford & Mississippi:

  • DUI Crackdown
  • DUI Penalties in Mississippi
  • Zero Tolerance for Minors
  • A DUI Lawyer: Kind of...


  • Ole Miss Alcohol Rules:
  • What are the Alcohol Rules on Campus - I'm Confused...?
  • "Changing the Culture": Ole Miss Alcohol Policy & Two Strikes Rule
  • Legal Drinking Age: The Debate Continues
  • Related Information:

  • Why Talking to the Police is a Bad Idea...Again
  • Should I Let the Cops Search My Car?
  • Field Sobriety Tests: What Are the Police Looking For?
  • Update on the Lafayette County Courthouse Saga

    Today the Lafayette County Bar Association formally requested that it be placed on the agenda for the upcoming meeting of the Board of Supervisors on September 2nd.  This request was hand-delivered to County Administrator Joe Johnson. 

    I certainly plan to attend the meeting, and anticipate I'll see many of you there as well.  I'd suggest to the supervisors that they move the meeting to a larger courtroom.  Perhaps one of the courtrooms in the Chancery Building will accommodate the crowd (unless the crowd is of a size typically seen on Circuit Court arraignment day or at docket call - if that's the case someone should arrange for a PA system in the hall).

    Forensic Science: Fairness & Reform

    A few months back I mentioned in passing the questions surrounding the qualifications of Dr. Stephen Hayne as a medical examiner/forensic pathologist.  Early this month, the State of Mississippi terminated its relationship with Dr. Hayne.  Many others have followed this story closely, so I'm not going to attempt to pull the pieces together.  For background I'd recommend visiting folo.  Suffice it to say that the problem has not been solved - terminating Hayne was simply the first step in what will certainly be a long journey to justice for many criminally accused and convicted (wrongfully) in Mississippi.

    One side story that has interested me is the opportunity, created by the Hayne debacle, for defense oriented forensics experts to attack the current state of forensic science as controlled by the state/government, market their expertise and promote their utility.  On August 12th, Slate published an article discussing the need for reform in forensic science.  Here is a liberal excerpt:

    Last week, the state of Mississippi terminated its 20-year relationship with medical examiner Dr. Steven Hayne. Hayne has come under fire from fellow medical examiners, criminal justice groups like the Innocence Project, and one of the authors of this article for his impossible workload, sloppy procedures, and questionable court testimony. In the early 1990s, Hayne and his frequent collaborator, now-disgraced forensic odontologist Dr. Michael West, helped secure murder convictions for Kennedy Brewer and Levon Brooks, both later proven innocent through DNA testing. The two were released from prison earlier this year.

    Mississippi is hardly alone when it comes to bad forensic science. It now appears that Washington, D.C., may have to retry Angela O'Brien for the 2000 killing of her 2-year-old goddaughter, Brianna Blackmond, after revelations that the prosecution's star forensic witness, a physicist named Saami Shaibani, lied about his credentials in a Wisconsin murder case. These are only the most recent and dramatic examples of forensics fraud to make the headlines. Over the years, there have been plenty of other hucksters and charlatans happy to take advantage of the ignorance of juries, prosecutors, judges, and defense attorneys in very complicated and difficult-to-understand disciplines.

    But the charlatans are only half the story. Courts have also missed plenty of mistakes from well-intentioned, conscientious scientists, too. In fact, these may be even more common—and harder to catch. Studies show that crime lab fiber, paint, and body fluid analyses, for example, may consistently have error rates of 10 percent or higher. The error rate in fingerprint analysis is possibly between 1 percent and 4 percent. And bite mark evidence is notoriously unreliable though still widely used. The Chicago Tribune reported in July that L. Thomas Johnson—one of forensic odontology's pioneers—has been attempting to use statistical models to shore up the reliability of this discredited field. But Johnson's efforts have been hampered by new DNA testing in a 1984 murder, which concluded that the man convicted of the crime was not the source of saliva found on the victim's sweater. Johnson testified for the prosecution in that case.

    The use of forensic science in criminal trials is critically important. But reforms of the system are also desperately needed. It's not enough to weed out the incompetent scientists. We need to begin to monitor even the good ones. One major barrier to improving forensic evidence in criminal trials is that in most jurisdictions, the state has a monopoly on experts. Crime lab analysts and medical examiners (and to a lesser extent DNA technicians) typically work for the government and are generally seen as part of the prosecution's "team," much like the police and investigators. Yes, science is science, and it would be nice to believe that scientists will always get at the truth no matter whom they report to. But studies have consistently shown that even conscientious scientists can be affected by cognitive bias.

    A scientist whose job performance is evaluated by a senior official in the district attorney or state attorney general's office may feel subtle pressure to return results that produce convictions. In cases in which district attorneys' offices contract work out to private labs, the labs may feel pressure—even if it's not explicit (though sometimes it is)—to produce favorable results in order to continue the relationship.

    Cognitive bias can be even subtler. For some experts, merely knowing the details of a crime or discussing it with police or prosecutors beforehand can introduce significant bias to a lab technician's analysis.

    Now that you're interested, go read the rest of the story on Slate, here.  If reading about error rates and disgraced scientists doesn't make you cringe, maybe an article entitled "Fairness in Forensics" will.  A helpful reader sent along the piece, the beginning of which I've excerpted below.

    A Mississippi judge has recently taken the unusual step of allocating several thousand dollars in county funds so a defendant, accused of murdering a Jackson State University co-ed last November, can hire a forensic expert to examine the evidence in the case, scheduled for trial in September.

    With forensic evidence - fingerprints, DNA, ballistics, bloodstain patterns, footwear analysis and the like - a significant factor in more and more verdicts, let's hope Judge Swan Yerger's recent action sets a national precedent. Let us explain why.

    In today's "CSI" world, forensic scientists, like the television character Gil Grissom, may have overtaken lawyers as the most influential players in courtroom dramas. The evidence they analyze and present as part of the prosecution team is often the deciding factor in whether a defendant is found guilty or innocent.

    But research indicates that forensic evidence is often flawed. So, in fairness, defendants should have a right to forensic expertise, just as they have a right to an attorney.

    Legal Drinking Age: The Debate Continues

    Making national news today is the debate over whether the legal drinking age in America should remain 21, as it is today, or be lowered to 18, as it is in many other parts of the world.  Approximately 100 college chancellors and presidents across the country have announced the formation of the Amethyst Initiative, the stated objective of which is to "Rethink the Drinking Age."  From their website:

    Launched in July 2008, the Amethyst Initiative is made up of chancellors and presidents of universities and colleges across the United States.  These higher education leaders have signed their names to a public statement that the 21 year-old drinking age is not working, and, specifically, that it has created a culture of dangerous binge drinking on their campuses.

    The Amethyst Initiative supports informed and unimpeded debate on the 21 year-old drinking age. Amethyst Initiative presidents and chancellors call upon elected officials to weigh all the consequences of current alcohol policies and to invite new ideas on how best to prepare young adults to make responsible decisions about alcohol use.

    The press picked up on the Amethyst Initiative today - articles appear in the Clarion Ledger and the Commercial Appeal.  Other blogs are also chiming in, see folo and the DUI Blog

    Of specific interest locally is the fact that both the Rhodes College (located in Memphis) President and the Millsaps College (located in Jackson) President are signatories.  Absent is the signature of Ole Miss Chancellor Robert Khayat - Ole Miss is locked in a press battle fighting its
    party school image (after ranking 2nd on this year's Princeton Review "Top Twenty Party Schools" list) and is focused on "changing the culture" of alcohol on campus and in Oxford.  Personally, I'd like to hear what Chancellor Khayat's thoughts are on this matter.  You don't have to spend much time in Oxford before you realize that persons between the ages of 18 and 21 are drinking regardless of the law.

    More from the Amethyst Initiative website:

    It’s time to rethink the drinking age

    In 1984 Congress passed the National Minimum Drinking Age Act, which imposed a penalty of 10% of a state's federal highway appropriation on any state setting its drinking age lower than 21.

    Twenty-four years later, our experience as college and university presidents convinces us that…

    Twenty-one is not working

    A culture of dangerous, clandestine “binge-drinking”—often conducted off-campus—has developed.

    Alcohol education that mandates abstinence as the only legal option has not resulted in significant constructive behavioral change among our students.

    Adults under 21 are deemed capable of voting, signing contracts, serving on juries and enlisting in the military, but are told they are not mature enough to have a beer.

    By choosing to use fake IDs, students make ethical compromises that erode respect for the law.

    How many times must we relearn the lessons of prohibition?

    We call upon our elected officials:

    To support an informed and dispassionate public debate over the effects of the 21 year-old drinking age.

    To consider whether the 10% highway fund “incentive” encourages or inhibits that debate.

    To invite new ideas about the best ways to prepare young adults to make responsible decisions about alcohol.

    We pledge ourselves and our institutions to playing a vigorous, constructive role as these critical discussions unfold.

    Race and Witness Identification

    Here is a thought provoking story which points to the role played by race in witness identifications.  Citing the Innocence Project, the article raises a number of interesting issues.  Some excerpts:

    While being raped, Jennifer Thompson-Cannino told herself to pay attention to details that would allow her to identify her attacker.

    She gave police in North Carolina a description that led to a sketch of the suspect. Then she identified a man from photographs, picked him out of a lineup and told jurors she was certain he was the rapist.

    That man, Ronald Cotton, received a life sentence and spent more than 10 years in prison before DNA testing cleared him.

    Now the victim and the innocent man she helped convict are writing a book together.

    Thompson-Cannino, who is white, mistakenly picked out one black man; another was guilty of the crime.

    "Between the composite sketch and the photo identification, I had messed it up," she said, recalling the 1984 rape and its aftermath. "By the time I got to the physical lineup, Ron Cotton had become my attacker and that was that."

    And as she came to learn, she was not the only one to make a mistake so devastating that it deprived someone else of his freedom.

    Since 1991, 218 people have been exonerated through DNA testing, and in more than three-quarters of the cases, mistaken eyewitness identifications were crucial in the wrongful convictions, according to The Innocence Project, a legal group that has sought genetic testing and led the charge to free innocent inmates.

    Of those, nearly half, roughly seven dozen, involved a person of one race wrongly identifying someone of a different color.

    The American Bar Association, meeting in New York, is considering whether to recommend that judges use their discretion to make juries aware of the problems that can plague cross-racial identifications.

    California, Massachusetts, New Jersey and Utah already employ such instructions in some cases.

    "The majority race is not as good at identifying minorities as it is its own race. This is hard-wired in some way that we don't completely understand. But the phenomenon should be presented to the jury," said Barry Scheck, co-founder of The Innocence Project.

    Prosecutors, however, do not want judges to raise the issue with juries.

    "Yes, eyewitness ID across races has its issues," said Josh Marquis, district attorney in Astoria, Ore., and a member of the executive committee of the National District Attorneys Association. "But is there a rampant problem to the degree that we need to get judges to start telling juries this is the law? No."

    Some criminal justice experts believe that mistakes are so pervasive that nothing short of wholesale reforms in identification procedures will fix the problem.

    This is, of course, a particularly pertinent discussion to have in Mississippi and the South.  I expect that our new and local branch of The Innocence Project has set its focus on this issue.

    DUI Crackdown - UPDATED

    A national campaign against impaired/drunk driving begins today and continues through Labor Day on September 1st.  The Oxford Eagle explains that locally the Oxford Police Department will cooperate with the Mississippi Highway Patrol in setting up roadblocks and adding extra officers, as well as putting special emphasis on area bars and their compliance with local alcohol ordinances.  The following is excerpted from this Oxford Eagle story:

    In an effort to crack down on drunk drivers, the Oxford Police Department will join the Mississippi Highway Patrol and other law enforcement agencies around the state in the upcoming Impaired Driving Enforcement campaign starting today and running through Labor Day.
    “We have to participate in these programs to be eligible for grants,” said OPD Chief Mike Martin.

    The campaign, titled, “Drunk driving. Over the limit. Under arrest,” is a national effort to prevent tragedies in Mississippi and across the United States.

    “We will have driver’s safety check points, DUI checks and checks for seat belt usage,” Martin said. “We will also have extra personnel on during certain days to ramp up the enforcement.”

    Impaired driving is a deadly crime with serious consequences.

    A big focus for the campaign is to cut down on DUIs.

    “We’ve been working hard on solving our alcohol problems,” Martin said.

    While not part of the national campaign, Martin said his force will also be keeping an eye on bar owners in Oxford to make sure they are complying with local alcohol ordinances.

    “We will be checking to make sure they are in compliance by not selling alcohol to minors and not selling or consuming alcohol after hours,” he said. “The bars bear a great deal of responsibility to curb any alcohol issues we may have.”

    For more information see my previous posts on DUI's and DUI law in Mississippi here and my post on field sobriety tests here.

    UPDATE — 18 August 2008:
    Today the Memphis Commercial Appeal has
    this story focused on the DUI crackdown.  Just in case you didn't already know.  An excerpt:

    The Mississippi Highway Patrol has launched a new campaign aimed directly at drunk or impaired drivers.

    The campaign, which began Friday, will be joined by other local law enforcement agencies with similar campaigns in other states.

    "We'll have extra officers out, particularly on weekends and at night through Sept. 1," said Sgt. Leslie White, public affairs officer for the MHP's Batesville District...

    "Driving impaired is simply not worth the consequences," he said.

    The MHP mantra is simple: "If you're over the limit, you are under arrest. No exceptions."

    While the focus is on impaired driving, White said troopers also will be checking for drivers licenses, seatbelt usage, and the use of child restraint devices.

    "We will have some roadblocks and additional patrols and we will be looking for speeders, those who fail to obey the 'move over law,' and anything else that can contribute to accidents on our roads and highways," he said.

    Oxford Eagle Files Complaint with Mississippi Ethics Commission Regarding Supervisors

    Today the Oxford Eagle announces that it has filed a Complaint with the Mississippi Ethics Commission regarding a meeting held by Supervisors Olpihant, Morgan and Sockwell with representatives of local community groups prior to their decision regarding the Circuit Court.  The following is excerpted from the article, which can be found here:

    After learning about a meeting between three Lafayette County Supervisors and community leaders to discuss the use of the newly renovated Lafayette County Courthouse, The Oxford EAGLE has filed a complaint with the Mississippi Ethics Commission requesting an opinion as to whether the supervisors violated the Open Meetings Act.

    On July 24, supervisors Lloyd Oliphant, Johnny Morgan and Ray Sockwell Jr. met with representatives from the Heritage Foundation and Oxford Convention and Visitors Bureau at the courthouse...

    On Aug. 4, two weeks after meeting with the local leaders at the courthouse, the supervisors voted 3 to 2 to not move the Circuit Court back to the courthouse, but to move the Justice Court over instead. They also voted to allocate space for the Heritage Foundation and the Convention and Visitors Bureau.

    The three supervisors at the courthouse meeting — Morgan, Oliphant and Sockwell — voted for this new re-use plan. Supervisors Mike Pickens and Robert Blackmon voted against the motion. Board president Oliphant announced this morning he will be changing his vote.

    Don Whitten, editor of The Oxford EAGLE, said the newspaper’s role in the community is not to police every action or complaint heard about the supervisors, but it is to make sure the actions of government officials and boards are done in a “proper manner.”

    “We just had too much information given to us about this incident to ignore it,” Whitten said this morning. “We are concerned about the appearance this meeting gives to us as a newspaper, to our readers and the citizens of Lafayette County. We would like an opinion on this matter from the Ethics Commission.”

    According to the Open Meetings Act, a quorum of the Board of Supervisors assembled for the purpose to discuss county business without giving proper public notice, is a violation of the act. Three or more members of the Board of Supervisors constitutes a quorum.

    Also today the Eagle ran this story detailing Supervisor Oliphant's stated intention to change his vote.  I posted his letter here this morning.

    Supervisor Changes His Mind...?

    Breaking News: In the ongoing saga regarding the relocation of the Lafayette County Circuit Court, there is a big development today.  Supervisor Lloyd Oliphant forwarded this letter to the bar expressing his intent to change his vote and allow the Circuit Court to return to the historic courthouse on the Square.  Unfortunatly, Mr. Oliphant couldn't bring himself to simply say "I'm sorry, this was clearly a poor decision.  I'm happy to change my vote and make this right."  Instead, he takes swipes at the Lafayette County Bar and "various persons" (think he's talking about me?) for doing what citizens are supposed to do - express their thoughts and will to their elected officials.  Certainly this could have all been avoided if Mr. Oliphant had taken the advice of Supervisor Pickens and tabled the vote to allow for public input.  Alas...

    There has yet to be an official vote, so expect the legal action by the Lafayette County Bar and local citizens to continue until the Supervisors meet and a new motion is passed.  I'll continue to keep you updated.

    For more information see my previous posts on this subject.

    Lafayette County Board of Supervisors: Video Proof of a Bad Decision
    Lafayette County Courthouse - The Real Story
    Lafayette County's Historic Courthouse on the Square - Politicized

    Lafayette County Board of Supervisors: Video Proof of a Bad Decision

    The video below is an excerpt of the August 4th, 2008, Lafayette County Board of Supervisors' meeting during which three members of the board voted to keep the Lafayette County Circuit Court from returning to the historic courthouse on the Square.  For background, I have posted extensively on that decision here and here.  The video lasts about 27 minutes, and is well worth the time.  The supervisors are seated from left to right as follows: Robert Blackmon, Mike Pickens, Lloyd Oliphant, Ray Sockwell, Jr. and Johnny Morgan.  Appearing frequently on the far right is County Attorney David O'Donnell.

    As you watch, you will see Blackmon and Pickens vehemently oppose what is clearly a poorly planned and political decision by Oliphant, Sockwell and Morgan.  In fact, Pickens speaks out on this point in the second half of the video (16:40) and asks that the Board postpone the decision to seek input from the community.  Clearly community input is not important to Oliphant, Sockwell and Morgan (notwithstanding the fact that their positions are elected ones) because you will see that they proceed to force the decision forward despite the protests of Blackmon and Pickens.

    Be warned, this video may cause you to become exceedingly angry with Oliphant, Sockwell and Morgan.  Two points of special interest: (1) near the end of the clip the confusion over the various motions and amendments becomes quite comical; and (2) the highlight is when Planning Commissioner T.J. Ray challenges the Board's "stupid" action and questions when they might be inclined to listen to their constituents (15:50).  I'd be interested to see your thoughts in the comments.



    Defendant Pleads Guilty in Mississippi Beef Plant Case

    Facility Group chairman and chief executive Robert Moultrie, of Smyrna, Georgia, plead guilty on Monday before Chief Judge Michael P. Mills in the Oxford Federal Courthouse for the United States District Court for the Northern District of Mississippi. In pleading guilty, Moultrie admitted giving $25,000 to an elected official "to influence and reward the public official" for the state hiring the company.

    Two other executives of the Facility Group - Nixon Cawood, Jr. and Charles Morehead - were charged along with Moultrie in a 16-count indictment in June. The indictment alleges they submitted invoices for work not performed and fraudulently inflated prices for the company, which was hired in 2003 to help design and manage construction of the Mississippi Beef Processors plant in Oakland, Mississippi. The facility, a 140,000-square-foot enclosure, closed in 2004, only three months after it opened. Nearly 400 people lost their jobs as a result of the plant closing.  Mississippi taxpayers were left paying $55 million in state-backed loans.

    Cawood and Morehead are set for trial on August 25th.

    Driver, Victims of Deadly Bus Accident Identified

    Note:  You can read my first entry on this story here.

    The driver of the bus involved in a deadly accident in Tunica, Mississippi, on Sunday morning was identified Monday as being Larry D. Williams, age 54, of Tunica County, Mississippi.  Members of the media, attempting to speak with him or his family about the accident, were escorted off of Williams' property Monday by a trio of Tunica County Sheriff's Deputies.  WREG-TV in Memphis, Tennessee, reports, after consulting with accident reconstruction experts, that the Mississippi Highway Patrol's investigation into the crash could last weeks or even months.  The experts they consulted also said that the rainy weather and/or speed are the most likely causes of the accident.  WREG-TV's sources also say Williams' wife stated shortly after the wreck on Sunday that the driver had never had a traffic incident on his record and that, thus far, their investigation corroborates that assertion.  You can read their story here

    The three people killed in the crash, all of whom were female, have been identified as Glenda Stone, age 53, of Goose Creek, South Carolina; Charlotte Carros, age 63, of Eutawville, South Carolina; and Paula Kemp, age 53, of Mount Pleasant, South Carolina, according to Mississippi Highway Patrol spokesperson Sergeant Leslie White.  Five people reportedly remain hospitalized as a result of the accident.  Two are still hospitalized at The Med, one in serious condition and one in critical condition, and three remain hospitalized at Baptist Memorial Hospital-DeSoto.  You can read the account of Jim and Sandra Bethune, who survived the crash, here.

    After the bus accident in Tunica, which came just two days after a deadly bus wreck in Texas, many have said that seatbelts should be an industry standard on buses.  Then, on Sunday night, another bus wrecked in Nevada, injuring 29.

    I will bring you more on the Tunica, Mississippi, bus accident as details become available.

    Tunica Bus Crash Kills 3

    Cause of Crash Under Investigation by the Mississippi Highway Patrol


    A bus owned by Harrah's Casino and carrying the driver along with 42 passengers from South Carolina crashed at 10:16a.m. Sunday morning near the intersection of U.S. Highway 61 and Casino Strip Resort Boulevard in Tunica, Mississippi.  Initially, Mississippi Highway Patrol spokesperson Sergeant Leslie White reported four fatalities, but reports this evening all confirm that three people were killed in the crash.  The passengers on board the bus were all reportedly guests of Harrah's Casino and on their way to the Tunica airport to board a charter flight back to South Carolina.  Many of the passengers are reported to be from the Charleston, South Carolina area.

    The Mississippi Highway Patrol (MHP) is investigating the crash.  Sergeant White reported that the MHP's accident reconstruction team was at the scene of the wreck and that the crash is still under investigation.  He also stated that while he could not confirm that vehicle speed was a factor that caused the accident, the rainy weather conditions could have been a cause of the wreck.  Sergeant White stated that he had no information on the driver of the bus.  Larry Liddell, a spokesperson for Tunica County, stated that he was certain the driver would be interviewed.  Reports are that the bus was heading south on U.S. Highway 61 after turning right off
    of Casino Strip Resort Boulevard when the driver swerved and lost control of the bus.  No possible reasons for the driver's actions were released by the MHP.

    At least seven medical helicopters were flown to the scene to transport the injured to area hospitals.  Information regarding where passengers are being treated and their condition has been conflicting.  It appears Baptist Memorial Hospital-DeSoto in Southaven, Mississippi, took in the bulk of the accident victims forcing the hospital to go into 'disaster mode'.  Twenty seven people were taken to the hospital; one was in critical condition, one underwent surgery Sunday evening to repair broken bones, five were reported to be in stable condition and the remaining 20 patients were treated and released. 
    Four accident victims were reported to be taken to the Regional Medical Center at Memphis, commonly referred to as 'The Med'; of those, two were reported as being in critical condition and two were reported as being in fair condition.  Methodist Central Hospital in Memphis is reported as having two accident victims in good condition.  Reports are that two patients were treated and released at Methodist University Hospital, two were treated and released from Methodist South Hospital and one patient there was still being assessed Sunday evening.  The location and condition of the other accident victims is unknown.  As of 11:44p.m., WREG-TV in Memphis reported that five people were still being treated at area hospitals as a result of the accident.

    I will update this story as it progresses, including the cause of the accident and whether charges will be filed against the driver or others.

    Mississippi State Football Players Plead Guilty

    In case anyone missed it, three Mississippi State University football players (cornerback Anthony Johnson, reserve linebacker Jamon Hughes and reserve defensive tackle Rodney Prince) each plead guilty in Oktibbeha County Justice Court on Tuesday, July 29, 2008, to the charge of obstructing an arrest.  You can read the story published by the Clarion-Ledger here.  The quite short announcement on the Mississippi State athletic site can be found here.

    Lafayette County Courthouse - The Real Story - UPDATED

    Think the language in my previous post ("...my view is that the three supervisors in question, Johnny Morgan, Lloyd Oliphant and Ray Sockwell, Jr., abandoned sound judgment, official responsibility and the welfare of the public and voted in favor of political gamesmanship and personal interests.") about three of Lafayette County's Supervisors was a bit strong?  Check out what some commentors have to say over at folo.

    Now that you know the details of the story, I'd like to fill you in on the local response.  The Lafayette County Bar unanimously passed this 
    Resolution on Tuesday evening - the Resolution strongly encourages the Supervisors to reconsider their decision.  Take some time to look over the 40 signatures from local members of the bar, including those of Omar Craig, Grady Tollison, David Bell, Swayze Alford, George Read, Cal Mayo, Pope Mallette, Andy Phillips and Judge Lamb (some are easier to read than others!).  Additionally, on Thursday the Lafayette County Bar along with some additional local Appellants (including yours truly) filed this Notice of Appeal from the decision.  Look at the number of local firms who joined the Notice as "Of Counsel" - I can truly say I feel well represented in this case!  Stay tuned for updates on the legal maneuvering.

    Finally, to the political aspect of this mess, I'd direct you to some interesting and pertinent information at the end of Alyssa Schnugg's Wednesday article, which for some reason isn't available on the Oxford Eagle website.  So, I've scanned it in and you can view it
    here.  Alyssa details recent instances in which the Supervisors and the Circuit Court have disagreed, including over the current Lafayette County public defenders and an attempt by one of the Supervisors to grab vital Circuit Court space to use as his personal office. 

    What gets me about these shenanigans is this: by all accounts the Lafayette County Justice Court and the other entities which are slated by these three Supervisor's to have space in the courthouse have no interest in moving from their current locations.  The Supervisors appear to have acted with no consideration of the real issues pertinent to their decision - they seem only concerned with blocking the return of the Circuit Court.  Word on the street is that Morgan, Oliphant and Sockwell are trying to flex their muscle after losing previous arguments with the Court - as expressed to me at church this morning, paraphrased: "I think it's sad that three grown men/elected officials have nothing better to do than play power games with the Court and their constituents' tax dollars."

    UPDATE:
    Check out this Public Records Request served on the Board of Supervisors by the Lafayette County Bar on Friday.  Of special interest are request No.'s 3, 7, 8 and 9.  So that you get the gist, No. 3 asks for "[a]ny and all documents or records regarding prior decisions of three or more members of the Lafayette County Board of Supervisor [sic] involving the current renovation of the Lafayette County Courthouse, whether or not any such decision was made at a publicly-noticed meeting of the Lafayette County Board of Supervisors."  The implication is that the Board, or at least some members of the Board, made this decision on the sly.  Can't say I'd be surprised.

    Lafayette County's Historic Courthouse on the Square - Politicized

    On Monday, August 4th, three members of the
    Lafayette County Board of Supervisors voted to block the long-planned return of
    the Lafayette County Circuit Court to the historic courthouse on the Square
    (beginning last summer more than $3 million has been spent to renovate the
    courthouse specifically for the Circuit Court).  I cannot overstate
    the negative reaction this has received from local citizens, the press and the
    Lafayette County Bar.  Every conversation I've had about the subject has
    quickly turned to shock and concern at the irresponsible action of the
    Supervisors.  For background, I'm going to cite and excerpt a number
    of articles below in chronological order from the beginning of the week through
    today.  Take some time to read the excerpts, click through and read the
    full article if you're inclined, and I'll catch you up on some additional
    political details tomorrow. 
    ...<< MORE >>

    Why talking to the police is a bad idea...again.

    I have previously posted on why talking to the police when you are under investigation is a bad idea.  Today I ran across a post here with a link to the video below.  If you ever plan on being pulled over or arrested (or even if you don't plan on it but recognize the possibility exists), you should take the time to watch this video.  The former police officer turned law student describes interrogation/interview techniques and how a confession can be easily obtained by a trained law enforcement officer.  He saves a neat trick for college age persons for the very end of the video - don't miss it.

    Batman and Criminal Conspiracies

    Watching the latest episode in the Batman franchise, my attention was grabbed by a scene where the Gotham District Attorney attempts to prosecute some of the city's criminals with a conspiracy charge under the RICO statute. (The RICO act is a federal law that stands for  Racketeering Influenced and Corrupt Organizations and allows members of an ongoing criminal enterprise to be prosecuted for crimes committed by other members of the group.)  That got me thinking about conspiracy and the Mississippi conspiracy statutes. 

    Black's Law Dictionary defines conspiracy as "
    an agreement by two or more persons to commit an unlawful act, coupled with an intent to achieve the agreement's objective, and (in most states) action or conduct that furthers the agreement; a combination for an unlawful purpose."

    The main conspiracy statute is Mississippi Code Annotated Section 97-1-1.  It states:

    "(1) If two (2) or more persons conspire either:

    (a) To commit a crime; or
    (b) Falsely and maliciously to indict another for a crime, or to procure to be complained of or arrested for a crime; or
    (c) Falsely to institute or maintain an action or suit of any kind; or
    (d) To cheat and defraud another out of property by any means which are in themselves criminal, or which, if executed, would amount to a cheat, or to obtain money or any other property or thing by false pretense; or
    (e) To prevent another from exercising a lawful trade or calling, or doing any other lawful act, by force, threats, intimidation, or by interfering or threatening to interfere with tools, implements, or property belonging to or used by another, or with the use of employment thereof; or
    (f) To commit any act injurious to the public health, to public morals, trade or commerce, or for the perversion or obstruction of justice, or of the due administration of the laws; or
    (g) To overthrow or violate the laws of this state through force, violence, threats, intimidation, or otherwise; or
    (h) To accomplish any unlawful purpose, or a lawful purpose by any unlawful means; such persons, and each of them, shall be guilty of a felony and upon conviction may be punished by a fine of not more than Five Thousand Dollars ($5,000.00) or by imprisonment for not more than five (5) years, or by both.

    (2) Where one (1) or more of the conspirators is a law enforcement officer engaged in the performance of official duty or a person acting at the direction of a law enforcement officer in the performance of official duty, any remaining conspirator may be charged under this section if the alleged conspirator acted voluntarily and willfully and was not entrapped by the law enforcement officer or person acting at the direction of a law enforcement officer.

    (3) Where the crime conspired to be committed is capital murder or murder as defined by law or is a violation of
    Section 41-29-139(b)(1), Section 41- 29-139(c)(2)(D) or Section 41-29-313(1), being provisions of the Uniform Controlled Substances Law, the offense shall be punishable by a fine of not more than Five Hundred Thousand Dollars ($500,000.00) or by imprisonment for not more than twenty (20) years, or by both.

    (4) Where the crime conspired to be committed is a misdemeanor, then upon conviction said crime shall be punished as a misdemeanor as provided by law.
    "

    So, as you can see, the base penalty for conspiracy is 5 years in prison and/or a $5,000.00 fine. However, if the crime is capital murder, certain sales of controlled substances [
    Section 41-29-139(b)(1) and Section 41- 29-139(c)(2)(D)] or possession of precursor chemicals with intent to manufacture a controlled substance then the penalty is 20 years in prison and/or a $500,000 fine.

    Something important that the statute doesn't explain is that conspiracy is a separate offense and you can also be charged with the base offense (the crime the conspirators conspired to commit).

    You can search for other Mississippi conspiracy laws or just browse the Mississippi Code online by going here.

    DUI Consequences in Mississippi

    The Mississippi Bar publishes a brochure titled "DUI Consequences: Student Guide" which is available online as a pdf document, here.  Being titled "Student Guide" I suppose that it is distributed to high schools and colleges throughout Mississippi.  My opinion of the brochure is that it is not entirely accurate, in that it omits important information, and the tone and imagery (handcuffs and fingerprints) are both a bit harsh.  It reads more like scary propaganda than an informative document.

    I can't imagine practicing DUI lawyers believe that scare tactics will have any impact on under-age alcohol consumption.  I'd rather the Bar provide information that is current and accurate, and leave the scare tactics to another organization.  I have previously posted information on DUI consequences and penalties in Mississippi, some of those posts are below.

  • DUI Penalties in Mississippi
  • Zero Tolerance for Minors
  • "Hardship" Driver's License
  • What are the Alcohol Rules on Campus - I'm Confused...?
  • A DUI Lawyer: Kind of...
  • Mississippi Criminal Law Court Links

    The following are links to criminal law courts that serve Oxford and/or North Mississippi:

    The following courts can be found by going here.  Once you are on the site click on 'Officials & Departments' and then scroll over the 'Courts' folder and click on the court of your choice:

    • Lafayette County Circuit Court
    • Lafayette County Drug Court
    • Lafayette County Justice Court
    The following links should take you directly to the respective court's website by clicking on the name;

  • Oxford Municipal Court
  • Mississippi Supreme Court
  • Mississippi Court of Appeals
  • United States District Court for the Northern District of Mississippi
  • Criminal Defense Law Blog Survey

    Jamie Spencer over at Austin Criminal Defense Lawyer is compiling a new survey of active criminal defense law blogs.  I'll post a link to the survey as soon as he's done.

    Jury Duty: Not Always Easy

    An interesting story today in the Commercial Appeal discussing the difficulties of jury duty in violent cases:

    "It's like a nightmare because you only see that in a scary movie and then all of a sudden you get in a trial and this same type of scene comes to real life," said Leake, 43, who works for an air-conditioning company. "You can't believe somebody can actually do somebody like that. Some of the people on the jury were traumatized. One lady broke down and cried. She cried a lot."

    When the trial is over and the verdict is in, jurors are sent home to resume their lives with little thought given to how their experience in a gruesome or stressful trial might affect them later.

    Post-traumatic stress disorder in the form of nightmares, obsessive thoughts, depression and social withdrawal is a real possibility, experts say, and some jurisdictions around the country have begun addressing the issue.

    Courts in parts of Washington state, Oregon, Arizona, Michigan, Ohio, Minnesota, New York and, most recently, Texas offer post-trial counseling and debriefing services for jurors who have been on difficult cases.

    The full article can be found here.  No doubt both criminal and civil cases can sometimes be difficult for jury members, as well as those involved in the court system on a daily basis.  But, I would argue that the average citizen has no more solemn and critical obligation than to serve on a jury when called.  In fact, each letter that leaves my office bears a stamp which reads "Jury Duty: Serve With Pride." I recommend reading the press release published by the United States Postal Service when they introduced the stamp. An excerpt:

    With this stamp, the U.S. Postal Service calls attention to the importance of jury service, an essential obligation, shared by all eligible citizens, that is a cornerstone of democracy in the United States. By showing a diverse group of 12 representative jurors in silhouette, art director Carl T. Herrman and stamp designer Lance Hidy emphasize that, under the U.S. Constitution, the American jury system guarantees citizens the right to a trial by a jury of their peers...

    Generally, in criminal cases, 12 jurors stand between the accused and the power of the government. Unless the government convinces a jury of the accused person's guilt - beyond a reasonable doubt - it may not deprive a citizen of life, liberty or property. In civil cases, a jury represents the conscience of the larger community, ruling in favor of either of the opposing parties in a dispute.

    Aggravated DUI

    I have previously written about DUI Penalties in Mississippi and Zero Tolerance for Minors, but those posts did not discuss the felony crime of "aggravated DUI" and its accompanying penalties.  A person is charged with the felony crime of "aggravated DUI" when they operate a motor vehicle in violation of the standard DUI statute (Miss. Code Ann. Sec. 63-11-30), and additionally, when they negligently cause the death of another person or mutilate, disfigure or permanently disable or destroy the tongue, eye, lip, nose or any other limb, organ or member of another person.  In other words, if a DUI related accident results in the death or injury of a passenger, pedestrian, or person in another vehicle, the offending driver may be charged with an "aggravated DUI."

    Each conviction for the felony of "aggravated DUI" carries a prison term for a period of time of not less than five (5) years and not to exceed twenty-five (25) years.  If convicted for more than one count of aggravated DUI, the court may choose to run the prison terms concurrently (i.e. at the same time, so that two 10 year sentences equal 10 years) or consecutively (i.e. one term followed by the other, so that two 10 year sentences equal 20 years).

    Should I let the cops search my car?

    One of the questions I hear most as a criminal lawyer is: "[i]f I get pulled over, should I let the cops search my car?"

    The realistic answer to this question is that it depends on the circumstances.  Although generally sound advice is a simple "no."  For other opinions, I decided to see what advice my fellow criminal law bloggers have given.  Below are excerpted answers to the question with a link to the full blog post.

    Can I Search Your Car? by Robert Guest

    First, cops will often try and trick you into granting permission to search your car. You should NEVER let the police search your vehicle.

    Why? The cop might be crooked, and your friends might be drug users. If you are innocent never let the police search. Believe or not if the police find your cousin's half burnt joint in the back seat, they aren't going to let you go.

    Also, look out for this typcial trick the cops use to get permission.

    Cop- "You don't have any guns, meth, hand grenades, or dead bodies in your car do you?"
    You- "No."
    Cop- "Then you don't mind if I search your vehicle."
    You- "Actually I do mind. Am I free to go now?"

    See the trick. The cop is implying that only a person with something to hide would deny permission to search. He wants you to say "No, I don't mind" before you have a chance to think about it." In this case the correct answer is "Yes I do mind".

    Cops rarely ask for permission to search in a straight forward manner. They often backdoor their search request because they don't care about informing you of your rights. They want to search.

    Why You Should Never Consent To Any Police Search... by Jamie Spencer

    Generalized consent to search a car in Texas apparently includes having to endure the officer choosing to move it to a different location to remove the gas tank...

    Wow. First we have the court affirming that a “basic search” can include looking under the car, and lifting the carpet??? Does that make you want to say “go ahead and search my car?” You don’t have to be hiding dope to find that objectionable...

    Is there any wonder that criminal defense lawyers advise folks to not submit to any search? No matter what the circumstances are? OK, do you have 90 minutes to waste while a cop tears your car apart?

    I'm back!

    Alright, I'm back from a fun summer vacation, with a tan, and will be posting on criminal law again in the next few days!  In the meantime, check out www.OxfordMississippi.com.

    Hinds County District Attorney & the Death Penalty

    The Hinds County District Attorney has announced his intention to seek the death penalty more often.  This is reported by the Clarion Ledger today as follows:

    Jackson's growing homicide rate has prompted Hinds County's new district attorney to do something that hasn't been done in at least two decades - seek the death penalty often in capital murder cases.

    Robert Shuler Smith said Wednesday he believes the death penalty is a crime deterrent. There have been 29 homicides in Jackson this year; there had been 18 at this time last year.

    "If someone thinks that you can commit murder in Hinds County and either walk away from the crime or not face the death penalty, I believe that weakens the strength of our laws," he said. "The death penalty should be imposed more frequently or more often."

    Of course, Hinds County includes Jackson, which is known in the region as a high crime city.  I have a number of problems with this announcement, not the least of which is reflected by a law enforcement statement buried at the end of the Clarion Ledger story.

    Jackson Assistant Police Chief Lee Vance said he believes society needs the death penalty but does not think it deters crime. He pointed to the recent execution of Earl Wesley Berry, a man convicted of kidnapping and beating a woman to death in 1986, as an example.

    "The length of time that goes by before the (death) sentence is carried out takes away any effectiveness it has as a deterrent," he said.

    "It would be a deterrent if a person was contemplating committing a crime and knew that if he was caught and convicted he would be put to death in three months, not in 20 years."

    Every criminal law course teaches that there are four traditional concepts or theories behind criminal punishment: 1.) retribution; 2.) deterrence; 3.) rehabilitation; and, 4.) incapacitation.  I certainly agree with Assistant Police Chief Vance that the deterrence theory is of no consequence when the time lag between the sentencing hearing and the imposition of the sentence spans decades.  I'm not a fan of the death penalty, but if the DA is going to be its champion why not place it under the appropriate theory of punishment - retribution.

    Juveniles and Life Without Parole Sentences in Mississippi

    Here is an interesting post on the Sentencing Law and Policy blog which begins:

    Most juveniles sentenced to life without the possibility of parole in Mississippi are black, a disparity that underscores the need to reform sentencing guidelines, according to a report by the NAACP Legal Defense and Educational Fund. Poverty, lack of education and broken homes are among other traits shared by youngsters sentenced to spend the rest of their lives behind bars, the report said.

    "Anything you say WILL be used against you"

    The above quote from an interesting post by Charles Kenville on the Iowa Champion advising that "under no circumstances do you talk to the police."  More from the post:

    The reasons people decide that they will talk to the police are varied. People are taught from a young age to obey police.  They think that if they don't talk they will "look guilty". Some people, frankly, are guilty but think they can "out-smart" the officer. Whatever the reason, they talk to the police. This is a bad, bad, bad idea.  The Miranda warning says it all. Anything you say WILL be used against you.  There is no maybe about it.  In all of my years of criminal law practice, if there is one thing that I have learned, it is that a defendant's statements to the police are the most powerful piece of evidence a prosecutor can have.  DNA is fine, but nothing really makes a jury perk up their ears as a defendant who "confessed".
    The full post, including eight reasons not to talk to the police, can be found here.  I agree with Charles that talking without the benefit of counsel is ill-advised.  One additional thought - I can think of many circumstances where I have been retained during the investigative stage of a case and have been able to negotiate a positive outcome with the police for my client.  Never underestimate the value of having an experienced advocate to speak for you and guide you through difficult circumstances.

    Felony Convictions & Long-Term Penalties (i.e. The Right to Vote)

    I found an interesting post on Underdog by Jon Katz describing a case handed down this week, U.S. v. McCarson.  An excerpt:

    When convicted felons are around guns and unlawful drugs, they risk exposure to substantial incarceration time. Lewis D. McCarson learned that when federal marshals came to his girlfriend's home with an arrest warrant for him. U.S. v. McCarson, 2008 U.S. App. LEXIS 11234 (D.C. Cir. May 27, 2008). Other than the arrest warrant, all went well for McCarson until he told the marshals that he wanted to wear his black pants, coat, and shoes on his way out the door. The marshals went to the bedroom for those articles of closing, and claim they then saw a bag of marijuana and a handgun in plain view and cocaine by the time they further opened the drawer to retrieve the handgun.

    One lesson learned here: McCarson's apparel request to the marshals boomeranged back with the rank smell of feces. Because the marshals had an arrest warrant but no search warrant, one is left to wonder whether they would have bothered doing anything to find the gun and drugs had McCarson just agreed to leave the home in his underwear...

    The full post, including Katz's lessons number two and three, can be found here.  Staying on the same topic - rights denied to convicted felons - here at home.  The Northeast Mississippi Daily Journal published an article yesterday on felony convictions and voting (sure to be a hot topic in this election year).  The article begins:

    When asked about his favorite candidate in this year's presidential race, 31-year-old Steven Hubbard didn't hesitate to say, "Obama's my man."

    But that's where his political voice ends. Hubbard, a convicted felon from Tupelo, is one of nearly 150,000 inmates and convicted felons in Mississippi who've lost their right to vote, nearly 7 percent of the state's adult population...

    ...Mississippi has a procedure that would allow Hubbard to have his rights restored. But with the presidential election less than six months away, some people have begun to wonder about the effect of having so many voting-age Americans disenfranchised, particularly black voters.

    According to the Sentencing Project, a nonprofit criminal justice organization engaged in research and advocacy, 48 states and the District of Columbia prohibit inmates from voting while incarcerated on felony offenses. Only Maine and Vermont permit these inmates to vote. Thirty-five states prohibit felons from voting while they are on parole.
    The full article can be found here.  If you read the full article, you'll note that it presents points of view from persons both for and against expanding the right of a convicted felon to vote.  The article quotes one person against expanding voting rights, he says:

    "We don't let everyone vote - not children, not non-citizens, not the mentally incompetent. There are certain minimum and objective standards of trustworthiness, loyalty and responsibility, and those who have committed serious crimes against their fellow citizens don't meet those standards."
    I couldn't leave this statement without some comment.  Equating convicted felons to children, non-citizens or mentally incompetent persons is simply ridiculous - I know that we Mississippians can all think of examples (very recent examples) of intelligent people who are also convicted felons.  I also think this guy assumes too much when he implies that all persons who are NOT convicted felons are trustworthy, loyal and responsible.  Not true.  I see no rational relationship between a felony conviction and responsible voting, they simply have nothing to do with each other.

    Mississippi Court System

    I am often asked how the Mississippi court system works - people are curious as to what courts we have in Mississippi and what court handles what type of case.  What follows is a brief outline.

  • Municipal Court: Associated with a municipality (for example, Oxford Municipal Court) this court has jurisdiction over city traffic violations, misdemeanor crimes (including DUI First and DUI Second) and municipal ordinances.
  • Justice Court: Jurisdiction over "small claims" civil cases where the amount does not exceed $2,500.00 (claims for recovery of debt, damages or personal property) and misdemeanor crimes and traffic violations that occur outside of a municipality.  For example, a DUI First received in the county rather than the city would be handled by the Justice Court.  The Justice Court may issue search warrants and may hold bond hearings and preliminary hearings in felony criminal cases.
  • Chancery Court: Jurisdiction over disputes in matters involving equity: domestic matters such as divorce, child custody and adoptions; guardianships and conservatorships; wills and estates; and, disputes involving title to real property.  The Chancery Court generally hears cases without a jury.
  • Circuit Court: Jurisdiction over civil cases where the amount exceeds $2,500.00 (unless there is a County Court) and felony criminal cases.  The Circuit Court also hears appeals from Justice Court and Municipal Court.  Typically, cases in Circuit Court are decided by a jury.
  • Court of Appeals: The Court of Appeals hears cases from throughout the state which have been assigned to it by the Supreme Court.  Court of Appeals judges are elected to eight-year terms.
  • Supreme Court: The Supreme Court is the court of last resort in Mississippi and it hears appeals from the Chancery and Circuit Courts, and may also hear appeals from the Court of Appeals.  Supreme Court justices are elected to eight-year terms.

    For those interested, more detailed information can be found at the State of Mississippi Judiciary website,
    here.
  • New Office Post/Interesting DUI News

    I've been busy this week moving in at my new office location - you can now find me just north of the Square at 428 North Lamar (convenient and ample parking available!).  While I continue to get organized here I have little time for new posts - so, check out these interesting stories from my blogging colleague.  I'll be back in full swing next week.

    Lawrence Taylor explains that
    "9% of You Drove 'Drunk' Last Month".  He then goes on to question DUI laws and their effectiveness (ineffectiveness).  Interesting read.  Lawrence also weighs in with a long post on an important development in Arizona, where a judge has dismissed 49 DUI cases due to the failure of the Intoxilizer 8000 manufacturer (CMI) to turn over programming code for the machine to defense counsel. See the AP story here.

    Blogrolling

    I wanted to take a minute to thank the following bloggers and blogs for their support in either adding the Mississippi Criminal Defense Law Blog to their pages or sending along useful information, or both.

    Additionally, here are some interesting blogs which I have been following lately:

    If I missed you, please email me and I'll add you to the next edition of Blogrolling.

    Underage Drinking: Risk Factors

    I just ran across this video that discusses risk factors relating to children and underage drinking on Slate (one of my favorite news oriented websites).  While the video didn't provide me with any new information on the subject, I thought it was interesting nonetheless.  As I was watching, I was thinking about the success of the BASICS alcohol counseling program at Ole Miss - see my previous post on the topic here.

    Mississippi Criminal Defense Law Blog in the News

    Last week the Oxford Eagle's Alyssa Schnugg raised the profile of this blog and others with her story on blogging. Over the last two days, various regional news outlets have published versions of her story: see the Clarion Ledger; the Natchez Democrat; WREG in Memphis; Fox Ten in Mobile; and WXVT in Greenville.  Thanks again to Alyssa!

    A DUI Lawyer: Kind of...

    I stopped in Oxford's Uptown/High Point Coffee this evening and found myself in a depressing conversation about a particular Mississippi lawyer and DUI defense. An acquaintance I often see in Oxford, let's call him Mr. X, asked me what I do for a living. When I told him I was a lawyer, and that I practice criminal law, he explained his DUI defense experience to me.  Without revealing information about Mr. X or his lawyer, suffice it to say he was not happy with the representation. 

    An aside.  The reality of criminal law practice is that some clients are understandably disappointed in the outcome of their cases - being accused of a crime is stressful, and a conviction or guilty plea is without doubt a difficult experience.  So, it isn't abnormal to hear complaints about criminal defense lawyers.  But, Mr. X's story stood out to me as something different from the normal frustrations and disappointments experienced by those in the criminal law system.

    Interestingly, Mr. X didn't protest "I was innocent" or explain how the court system was wrong.  Instead, he explained the poor representation he received from his lawyer and related the enormous fee he paid for that representation.  The poor representation included the lawyer not knowing the details of Mr. X's DUI arrest when he appeared in court and the lawyer disparaging local law enforcement in open court, both to the obvious detriment of Mr. X's defense. The fee Mr. X paid for the "representation", to my knowledge, is more than double the fee charged by most lawyers who practice DUI defense in the Oxford area.

    I've been reflecting on this conversation for a few hours now, and I'm still not sure what to say.  I related earlier that I found the conversation depressing.  That's because I do not believe that Mr. X's experience with his lawyer was typical.  The lawyers I practice with in Oxford are, for the most part, skilled and conscientious advocates.  They are professionals, and they represent their clients to the best of their ability.  (I trust that they would say the same thing about me.)  I guess all I can say is that Mr. X deserved better.

    A DUI Story: Kind of...

    I've heard numerous Oxford DUI stories over the years, from friends, strangers and clients, but this DUI tale is unique.  Thanks to Lawrence Taylor of the DUI Blog for bringing Jeff Brown's story to our attention.  Jeff relates in this video documentary (interesting but a little long) his experience of receiving a DUI while walking a bicycle and his journey through the legal system in Ohio.  Jeff also cites a number of statistics and attacks MADD (more on MADD attacks in a future post).  Like I said, the story is interesting, but I don't vouch for his statistical accuracy.  Enjoy!

    Professional Property Management

    Following a client request, I have decided provide professional property management as an additional service within my legal practice.  Asset management is a part of my legal practice, and I know that my legal training and experience as an attorney will be valuable to clients with property management needs.  My property management service will include tenant relations and rent collection — additional professional services will be available as needed.

    Added Benefits for Clients:
    One of my friends, Mark Pillault, owns and operates Oxford Remodeling Company and is known in the area for high quality work - visit
    marimekko or Orion Fitness to see his craftsmanship on display.  Mark has agreed to be available as needed for routine maintenance and minor repairs, and will also contract major repairs and remodels.  Lawn maintenance is also available through another associate.

    See my
    website for more information, and please call me if you would like to discuss your asset and/or property management needs.

    (Thanks for indulging this side topic - back to criminal law tomorrow!)

    "Pedestrian" at OxfordMississippi.com

    I've got a new post up today over at OxfordMississippi.com relating a story from my childhood, a decent story I think, and discussing the perils of being a pedestrian in Oxford.  Enjoy!

    Oxford Eagle on Blogging and the Mississippi Criminal Defense Law Blog

    Yesterday the Oxford Eagle published an article discussing blogs and blogging, including the Mississippi Criminal Defense Law Blog. The article can be found here. It includes the following quote from me about publishing this blog:
    "The information exchange with other bloggers helps me stay current with national trends in criminal law,” [I] said. “ I want to provide a forum for discussion of those issues. Second, I understand that many people find the criminal justice system mysterious — they don’t know how the system works and don’t know what to expect when they or a friend are charged with a crime. I believe that lawyers should work to make the legal process as transparent and accessible as possible, and I believe I am doing my part by publishing the blog."
    That pretty much sums up why I'm spending time here each day.  I hope you readers are finding the posts to be interesting and informative. One important note about the blog that I mentioned to Alyssa but that didn't make the story: the information found here is not a substitute for retaining a lawyer, but I hope readers gain a better understanding of the law and the processes of the criminal justice system. Thanks again to Alyssa for the story.

    Oxford Police Department v. The Daily Mississippian

    An interesting story today from The Daily Mississippian's (DM) Paul Quinn, who has just started his own blog while the DM is taking a finals break.  Paul explains how the DM and fellow reporter Victoria Howell have taken a stand against revealing notes and sources to the Oxford Police Department (OPD) in an ongoing investigation into an April 25th traffic accident.  An excerpt:

    The day our story ran a lieutenant sent me a text message asking if I could help him get with Ms. Howell. When I talked with her and the DM advisor’s they told Victoria not to speak with the police. We did not want our sources to think that we are an arm of the law, but that we are can be trusted by our sources.

    After explaining, via text, to the officer she could not help the investigation I was informed OPD would get a grand jury subpoena in order to obtain the information they wanted...


    Paul's full story, which I recommend, is here.  He goes on to explain that after seeking legal counsel, the DM chose not to provide OPD with any information, and are now waiting to see what will happen and hoping the OPD will "back down".  This is an interesting read, and brings to mind the high profile jailing of New York Times reporter Judith Miller who refused to testify to a grand jury investigating the leak of the name of then undercover CIA agent Valerie Plame.  Certainly this case would not warrant such drastic action by our local courts, but it is interesting just the same.  I trust that Paul will keep us informed as this story develops.

    Boating While Intoxicated

    A few weeks ago I posted "DUI's are for famous people too..." noting NBA star Carmelo Anthony's DUI arrest.  Today, we have more celebrity DUI news.  Sort of.  The NFL's Cedric Benson has been charged with Boating While Intoxicated (BWI?) in Texas.  An excerpt from the AP:

    Chicago Bears running back Cedric Benson was charged with failing a sobriety test while operating a 30-foot boat, then resisting arrest before being hit with pepper spray and dragged ashore by officers.

    Benson faces charges of boating while intoxicated and resisting arrest after the incident Saturday night on Lake Travis, Travis County Sheriff’s Department spokesman Roger Wade said Sunday.

    Benson was released from jail early Sunday on a $14,500 bond. The charges are class B misdemeanors, each punishable by up to six months in jail and a $2,000 fine. A call to Benson’s agent was not immediately returned.

    Benson was operating the boat with 15 passengers aboard when he was stopped by a Lower Colorado River Authority officer for a random safety inspection. He failed a field sobriety test on the officer’s boat and was uncooperative when the officer tried to take him ashore, the authority said.

    The full story can be found here.  Texas criminal law blogger Jamie Spencer is already reacting to the story - see his posts, at the Austin Criminal Defense Lawyer discussing the unfortunate characterization of Benson's past legal troubles here, and at the Austin DWI Lawyer discussing the so called "float test" given to Benson in an attempt to determine whether he was intoxicated here.  I'll leave it to Jamie to keep us up to date as the case progresses. 

    For interested in-state boaters, I thought I'd post some information about Mississippi's Alcohol Boating Safety Act.  You can see some text of the Act below - the first thing to jump out at me is the threshold BAC of .10% which is higher than the .08% threshold for a DUI.  Also noteworthy, but not reproduced here, is the fact that a BWI conviction results in significantly lower penalties than those resulting from a DUI conviction.  The Act states the following:

    (1) It is unlawful for any person to operate a watercraft on the public waters of this state who:

          (a) Is under the influence of intoxicating liquor;

          (b) Is under the influence of any other substance which has impaired such person's ability to operate a watercraft; or

          (c) Has ten one-hundredths percent (.10%) or more by weight volume of alcohol in the person's blood based upon milligrams of alcohol per one hundred (100) cubic centimeters of blood as shown by a chemical analysis of such person's breath, blood or urine administered as authorized by this chapter.

    Mississippi Code Annotated, Section 59-23-7(1).

    Regional Criminal Law News: Cause of Death Investigated

    The weekly roundup of criminal law news from Lafayette County, Marshall County, Panola County and Union County.

    This week, The South Reporter filed
    this story detailing the re-investigation of the death of Frank Alexander, who died in Marshall County on August 26, 2007.  Staff Writer Sue Watson notes the following:

    According to Kelly McMillen with the sheriff’s office, deputies were called to the residence and coroner John Garrison also came to the house and pronounced Alexander dead, apparently of natural causes, according to the coroner’s report.

    The body of the deceased was transported to a funeral home in Memphis, Tenn., and then from there carried to Jackson for autopsy, McMillen said. After autopsy, Alexander’s body was returned to Tennessee for burial.

    On September 4, 2007, members of the Alexander family from Marshall County and St. Louis, said they were not satisfied with the determination of the cause of death in the autopsy report and asked the sheriff’s department to launch an investigation, Dickerson said.

    McMillen said he spoke with Dr. Stephen Haynes [sic], with the state medical examiner’s office in Jackson, discussing with him the families concerns about the cause and manner of death.

    “During the conversation, I was advised by the medical examiner that Mr. Alexander’s body had to be exhumed for more tissue samples and testing,” McMillen said. “Then I went to work on getting an order to exhume the body in Shelby County.”

    It took six months to get the order to exhume the body and it was removed from the grave in a cemetery on Horn Lake Road in Memphis, Tenn., on March 11.

    The involvement of Dr. Hayne in this case is important because his qualifications as a forensic pathologist, or lack thereof, have been recently and publicly called into question.  The Clarion Ledger has filed this report, and the issue has been discussed at length on folo with these highlights: Mississippi Innocence Project goes for Hayne's Medical License; Yet Another Stephen Hayne Horror Story; and Fixing the State Medical Examiner Mess.  Good luck to the Marshall County Sheriff's Department in solving the case, and lets hope they get some help from a qualified medical examiner.

    Officers Rewarded for DUI Arrests

    Mississippi law enforcement officers will be honored in Jackson today in relation to DUI enforcement.  This news from a short blurb in the Clarion Ledger, which states:

    Nearly 70 officers from more than 20 departments statewide will be honored at [sic] today for their efforts in DUI enforcement.

    The event begins at 11 a.m. at the Jackson Hotel, 1000 E. County Line Road, in salons A & B.

    I wish the Clarion Ledger would have provided more information.  Who sponsors the event?  What awards are given?  I posted earlier this week on my thoughts about initiating a sober ride home program in Oxford, so my position on drunk driving is known.  But, I couldn't help but wonder if Mississippi law enforcement officers are honored for doing their job in other ways - awards for the most speeding tickets or the most accidents investigated?  Law enforcement officers are expected to protect all of us and enforce all laws, and they do a fine job.  It's just that special awards for DUI enforcement, for an intentional focus on one type of offender, make me cringe.

    Can the prosecutor read my text messages?

    In every criminal case the defendant is entitled to "discovery" from the prosecutor.  Discovery is the term lawyers use to describe the evidence gathered in the case against the defendant, which can include witness statements, investigation reports, audio and video recordings, and a myriad of other documents which tend to prove or disprove the defendant's guilt.  In many cases the prosecutor will subpoena phone records in an effort to establish an important fact - an example being that the defendant spoke with a certain person on a certain date and at a certain time.  The prosecutor's use of phone records is limited, in that the records generally only show that a call was placed or received, when it occurred, and how long it lasted.  Text messages are another story. 

    Today, Slate published
    this article on the availability of text message data from various wireless carriers.  The article focuses on the sex scandal currently surrounding Detroit's Mayor Kwame Kilpatrick.  An excerpt:

    If you delete an old text message, can someone (or his lawyer) still find it?

    Probably not—although there are exceptions. Most cell phone carriers don't permanently save the enormous amount of text-message data that is sent between users every day. AT&T Wireless, for example, says it keeps sent text messages for 48 hours only—after that, they are wiped off the system. Sprint, on the other hand, keeps messages on its server for approximately two weeks. A court order could force a carrier to retain certain messages as part of an ongoing investigation, but it would probably be impossible to get the contents of a 2002 text message from most cell phone companies.

    But as the Detroit Free Press noted after it uncovered the first trove of messages in January, Kilpatrick got in trouble because he used a government-issued SkyTel pager. SkyTel—which does much of its business through government and corporate contracts
    —offers message archiving as one of its key features.

    I can think of many scenarios in criminal cases where text message data could be very damaging to a defendant.  Unlike typical phone records, records of text messages may allow the prosecutor to actually see what was said by and to the defendant.  The lesson?  Be careful what you say in a text message, your words might be around for some time.

    Local News: Arrests on Double Decker Weekend

    This past weekend Oxford hosted the Thirteenth Annual Double Decker Arts Festival.  Not only did the Festival attract thousands to enjoy the great art, food and music, it also brought more than fifty arrests.  The Oxford Police Department made numerous arrests, including: sixteen for DUI; twenty-two for public drunkenness; multiple for minor in possession (MIP); multiple for resisting arrest and/or disorderly conduct; two for open container of alcohol; two for possession of a controlled substance; and, two for simple assault. 

    I participated in the Double Decker festivities as well as the Ole Miss baseball double-header and had a great weekend in the process.  Double Decker weekend highlights all that Oxford has to offer, and is more than deserving of its fame among locals and visitors alike.  Maybe Oxford's event organizers could take a good idea from our almost neighbors in Texas for next year's Double Decker... 

    I ran across
    this post today on the Frisco DWI Lawyer & Attorney Blog which details a Texas city's efforts to curb drinking and driving.  The City of Freeport, near Houston, now requires public event organizers who host events offering alcohol to provide a sober ride home to those attending the event.  I agree with Hunter that a requirement for all events may be a bit overboard, but the concept is great.  Although a good portion of my practice involves representing clients charged with DUI's, I would certainly support an organized plan like this one in Oxford.  As I tell all my clients and friends "safety first, but don't hesitate to call if you need me."

    Oxford sure is grand...

    ...read all about it!  I'd like to refer you to a new favorite blog of mine which covers a topic other than criminal law - that being good ol' Oxford, Mississippi.  Recently, I became a contributor to OxfordMississippi.com, a new blog covering all things wonderful about Oxford, written by others who love the town as much as I do.  I'll be posting some law related stories there, like the one I did last week titled Oxford Has Some Weird Laws...", as well as some simple commentaries on my life in Oxford away from work.  I won't be re-posting those stories here, but I'll try to remember to send you on over when something interesting pops up.  Enjoy! 

    Regional Criminal Law News: Alleged Murder in Panola County

    The weekly roundup of criminal law news from Lafayette County, Marshall County, Panola County and Union County. 

    Last week was highlighted by charges of murder and aggravated assault (see my previous post describing the elements of aggravated assault
    here) arising out of a fight in Panola County.  A preliminary story by Billy Davis of The Panolian can be found hereThe Panolian's report of actions taken in Batesville Municipal Court can be found here.

    I will continue to follow the alleged murder in Panola County and will bring additional information as it becomes available.

    Blogrolling

    I wanted to take a minute to thank the following bloggers and blogs for their support in either adding the Mississippi Criminal Defense Law Blog to their pages or sending along useful information, or both.

    Additionally, here are some interesting blogs which I have been following lately:

    If I missed you, please email me and I'll add you to the next edition of Blogrolling.

    What are the Alcohol Rules on Campus - I'm Confused...?

    I field numerous questions about alcohol laws and rules on the University of Mississippi campus.  What are the rules in the Grove?  What about the baseball stadium?  I understand the confusion — the rules are still relatively new, and they are different depending on your location on campus.  For readers who have never been to the Grove, and wonder why this is a big deal (it is), we wish you'd come visit us soon.

    The University of Mississippi Alcohol Policy was written to conform to local city and county laws.  Lafayette County is a "dry" county (see my explanation at OxfordMississippi.com here) where beer and light wine are prohibited.  The City of Oxford allows beer and light wine.  Additionally, the Alcohol Policy prohibits alcohol consumption in athletic venues during athletic events as well as in academic and administrative buildings unless a licensed caterer does the serving.  That means no alcohol in Vaught-Hemingway Stadium or Swayze Field during games.

    Now back to the original questions.  The Grove is outside of Oxford city limits, making possession and/or consumption of beer and light wine against the law.  Across the bridge at Swayze Field, which is within Oxford city limits, beer and light wine are allowed as long as it is kept outside of the stadium walls.

    Those who are regulars at campus events know that there is a tendency by enforcement personnel to look the other way in many circumstances.  Even so, now you know that the laws and rules are clear.  See you in the Grove!

    Drinking and Driving Isn't Always Illegal

    Last night I ran across this report from the Associated Press which purports to detail rates of "drunken driving" or "driving under the influence" throughout the country.  Some highlights:

    The upper Midwest has the worst drunken driving rates in the country, according to a government report that says 15 percent of adult drivers nationally report driving under the influence of alcohol in the previous year.

    The report on drunken driving relies on data obtained from the National Survey on Drug Use and Health. The survey, based on a scientific random sample of households, asked 127,283 adults in 2004, 2005 and 2006 whether they had driven under the influence in the past year.

    Interesting.  Seems that a government researcher asked a bunch of adults if they have had a drink and driven, about one in seven reported they had.  Well, drinking and driving isn't necessarily illegal.  Only at the very end does this story qualify the "data" by stating:

    It's illegal to drive with a blood alcohol level of 0.08 percent or higher.

    In the past decade, the number of impaired drivers involved in alcohol-related crashes has remained relatively stable — from 12,348 in 1996 to 12,491 in 2006. Those figures cover drivers with a blood-alcohol level of 0.08 percent or higher.

    The AP story simply adds to the negative press surrounding alcohol and driving, ignoring the fact that there are responsible adults all over the country who may have one or two drinks after work and head home - with their BAC under the legal limit.  In Mississippi, as in the rest of the country, a DUI arrest doesn't have to lead to a DUI conviction.  If you have been charged with a DUI, you need to evaluate your rights and your options.  Feel free to call me at 662.638.4089 or visit my website at www.kevinwfrye.com.

    Alcohol/Drug Counseling Program Expands

    Sue Lynn Mills of the Oxford Eagle filed this report yesterday detailing the outgrowth of the University of Mississippi's BASICS alcohol and drug intervention program in the form of Brief Intervention and Screening for the Community (BISC) and Substance Abuse Services.  The currently existing BASICS intervention program is mandated by the Court in DUI and other alcohol related cases involving students.  The BISC program is intended to serve the wider community - specifically those offenders not enrolled at Ole Miss. 

    My understanding of the BASICS program is that counselors work with students to learn how to be responsible when they consume alcohol, and for the few students with a clear drinking problem, to discontinue the consumption of alcohol altogether.  I have had a number of conversations recently centering on the responsibility of alcohol consumption, with clients, students and local residents alike.  I am certainly in favor of a program that is intentional in teaching responsibility rather than over-reacting and/or advocating zero tolerance.  My clients suggest that the BASICS intervention program can be helpful, and I look forward to the added opportunity that BISC may provide to my non-student clients.