Wednesday, January 28, 2009

That's Some Expensive Sh*t!

My law partner Jim Shelson spotted this gem of a story on the Associated Press, c/o Yahoo:

SAN DIEGO – A San Diego judge has declared a mistrial in a kidnapping and assault case after the defendant smeared excrement on his lawyer's face and threw it at jurors. The judge boosted defendant Weusi McGowan's bail from $250,000 to $1 million after the Monday incident.

Prosecutor Christopher Lawson says McGowan was upset because the judge refused to remove public defender Jeffrey Martin from the case.
McGowan had smuggled a bag of feces into court and spread it on Martin's hair and face before flinging the excrement at jurors. No jurors were hit.

That's a drug dealer's wet dream -- a $750,000 bag of shit . . . but did anyone think Mr. McGowan could post the $250K bond anyway?

More important by far though: is Mr. McGowan "shit-slinging crazy" -- or was he just "topping off" a lawyer who was already full of shit? And how does one "smuggle a bag of feces into court"? The jail, sheriff's van, and courtroom all smelled so bad that nobody noticed?

Monday, January 26, 2009

If You Thought Mississippi Was On Another Planet, Try Texas

The Texas Monthly reports on the welcome home party for former President George W. Bush in Midland, Texas.

Midland, Texas on Inauguration Day was kind of a parallel universe to the rest of the country. The Age of Obama was being heralded live on national TV, but in their Centennial Plaza, 20- to 25,000 Midlanders, waving red, white, and blue W’s, spent a gorgeous West Texas January afternoon listening to their own parade of local and statewide Republican luminaries. Music was provided by Larry Gatlin and Lee Greenwood.

The rest of the story is at:

We sometimes think that Mississippi is on another planet. But clearly, Texas is even further out on its own orbit. Don't that make you feel GOOD?

Latest GOP Brainstorm: Move the Gitmo Prisoners to Alcatraz??

Professor Douglas Berman of the law school at Ohio State University entertains us with this lively idea from the Republican House leadership:

Not surprisingly, the President's order to close GITMO has everyone talking about where the prisoners now held there will be sent. This Denver Post article, for example, reports on buzz already surrounding the the possibility that the GITMO detainees might be sent to the federal supermax prison in Florence, Colorado.

I think there is a pretty good chance that at least some of the GITMO detainees will end up in a federal supermax prison. But I was joyfully gobsmacked when on NBC’s “Meet the Press” this morning House Minority Leader John Boehner suggested we send them to Alcatraz.
As revealed in this official website, right now Alcatraz Island is a national park. But as detailed in official and unofficial websites, the colorful and dynamic history of Alcatraz (not to mention its secure location) makes it perhaps the most fitting locale for the next chapter of the war on terror.

Thanks, Professor. And thanks to you, Rep. Boehner. That bit of hilarity made my afternoon. And on the Gitmo detainees: why not just unlock the gates and let Raul and Fidel deal with it?

Innocent on Death Row in Texas

From the Houston Chronicle via DPIC, (, the following information about the threatened execution of an innocent man on Death Row in Texas:

The Houston Chronicle editorialized against the execution of Larry Swearingen, which had been scheduled for tomorrow, January 27. The Chronicle noted that the forensic scientist who testified about the time of death of the victim at Swearingen's trial now believes the death occurred later, a time at which Swearingen was in police custody on another matter. Five other physicians and forensic experts concurred that the murder occurred after the time that Swearingen was arrested on a traffic matter. Blood and hair samples from the victim also indicated the presence of another assailant. Dr. Glenn Larkin, a retired forensic pathologist who reviewed the case, told the Texas Monthly that “no rational and intellectually honest person can look at the evidence and conclude Larry Swearingen is guilty of this horrible crime.”
There have been 5 executions so far in 2009--100% have occurred in the south, and 60% in Texas. Three more executions are scheduled in January, all in Texas.
(Editorial, "Room for Doubt," Houston Chronicle, Jan. 22, 2009).

Two hours ago, the United States Court of Appeals for the Fifth Circuit granted a reprieve to allow Swearingen's lawyers to present this (and more) compelling evidence of his innocence. See

Take action: write Governor Perry of Texas -- no matter where you're from -- and ask him to stop this execution permanently. It CAN work.

Here's the link to his contact info:

Uncle Tom's Courtroom

Folo collects two stories about the new Assistant District Attorney in Lafayette County:

Tom Levidiotis was formerly the part-time Public Defender in that county. He was also formerly a staff attorney at the Mississippi Office of Post-Conviction Counsel (MOCPCC), toward the end of the years that Robert Ryan was Executive Director. Ryan's tenure marked some of the most shameful mis-representation of clients that has ever been seen in Mississippi death penalty jurisprudence.

Note: the JFP story I wrote about the execution of Earl Berry, and Ryan's woeful work, is at

The JFP's Ronni Mott did her own excellent reporting on the subject of MOCPCC:

But back to the land of Faulkner. Folo connects us to the Oxford Eagle's website (, where we experience this bit of courtroom drama:

The trial against the man accused of murdering University of Mississippi track star Rodney Lockhart has been postponed for an undetermined amount of time after the state announced it would be seeking additional charges against Christian Bonner during a pre-trial hearing Thursday.

Bonner was indicted for capital murder in December 2007 for allegedly shooting Lockhart in the head on Sept. 29, 2007, during a robbery.His trial has been postponed several times. The case was set for trial Monday, but Bonner’s attorney, Kevin Camp of Jackson, filed a motion asking for a continuance because he had other trials pending in Jackson.

* * * *

[Circuit Judge] Howorth said he would continue the case for a short period of time but was interrupted by Assistant District Attorney Tom Levidiotis who announced the state’s intent to supersede the indictment with new charges — which apparently took everyone by surprise. What the exact charges are or whether they were related to the state seeking the death penalty against Bonner were not being released by the District Attorney’s Office.

The state had announced last year it was not seeking the death penalty in the case, but Thursday Levidiotis hinted that could change and that decision would be up to the grand jury on Feb. 9 — not the state.“If the grand jury says that Mr. Bonner needs killin’ then by God, I will prosecute it that way,” he said in court.

Of course, as an experienced criminal lawyer should know, the grand jury does NOT decide whether the defendant in a capital case "needs killin." It is the prosecutor's prerogative to seek either death or life without parole when a grand jury indicts a defendant for capital murder.

One wonders whether this latter-day "Uncle Tom" had this much killer instinct when he was supposed to be defending capital murder defendants. Maybe that explains the poor performance of MOCPCC?

Too bad the original Uncle Tom didn't have this one's flexibility. He would have enlisted in the Confederate Army.

Sunday, January 25, 2009

The Next Financial Bubble?

The most recent issue of Forbes magazine includes an article entitled "The Great College Hoax." You can find it here:

When I first saw the title on the cover, I thought it would be yet another conservative screed against liberal arts institutions. It wasn't. Instead, the piece has a terrifying discussion of the effects of privatizing student loans. Author Kathy Kristof reports:

A decade ago nearly all student lending was of the low-cost, federally guaranteed variety, most of it with 6% to 8% interest kicking in only after a student left school. As costs outpaced such financing over the past decade, the share of student loans from "private" lenders rose from 7% to 23% of the market, or $20 billion in the 2007--08 academic year.

The rise of private student lending closely paralleled the subprime mortgage boom, which went from 8% of home loan originations in 2003 to 20% in 2006, before the housing meltdown sent that mortgage sector over a cliff. Private student loans resemble subprime mortgages in other ways, too. As banks and brokers did with subprime home loans, colleges and the lenders in cahoots with them commonly market private student loans alongside lower-cost alternatives, blurring the differences.

The key one is cost. Many private lenders tack 10% origination fees onto 18% variable interest rates (there is no legal limit), which begin accruing the moment a loan is funded. That has made private loans more than twice as profitable as government-guaranteed ones . . . .

New York Attorney General Andrew Cuomo has called private lending "the Wild West of the student loan industry." Some problems he notes smack of subprime mortgage lending: lax disclosure requirements, variable interest rates that compound and make paying off the principal a Sisyphean task, and kickback agreements by which lenders pay loan originators--in this case, colleges--a cut of their revenues.

State and federal authorities have taken action to curb the outright bribery. No less illustrious institutions of higher learning than Columbia University, New York University and the University of Pennsylvania paid $1 million-plus each to settle charges of wrongdoing in the student loan market.

Yet investigations still found "troubling, deceptive and often illegal practices . . . involving lenders, educational institutions and financial aid officials," according to Cuomo's office and the Congressional Committee on Education & Labor. Don't count on Washington to provide any more safeguards than it did with housing. Department of Education oversight of the student loan industry has been deemed insufficient by the Government Accountability Office.

Scary news indeed for students and their families. Look at this example cited by Kristof:

Mindy Babbitt entered Davenport University in her mid-20s to study accounting. Unable to cover the costs with her previous earnings as a cosmetologist, she took out a $35,000 student loan at 9% interest, figuring her postgraduate income would cover the cost.

Instead, the entry-level job her bachelor's degree got her barely covered living expenses. Babbitt deferred loan repayments and was then laid off for a time. Now 41 and living in Plainwell, Mich., she is earning $41,000 a year, or about $10,000 more than the average high school graduate makes.

But since she graduated, Babbitt's student loan balance has more than doubled, to $87,000, and she despairs she'll never pay it off.
"Unless I win the lottery or get a job paying a lot more, my student debts are going to follow me to the grave," she says.

In the 1950s, 60s, and 70s, Americans had a commitment to make college an affordable step for students with the ability and desire to make the grade. In the "deregulation" craze of the last quarter century, this became just another way to pad profits at the expense of hard-working men and women trying to make a better life for themselves. As one of Kristof's interviewees put it:

"You can get better interest rates, and better treatment, borrowing from Vito in downtown Brooklyn."

(My apologies to Italian loan sharks in the borough, who are unfairly compared with the college loan lenders in that quote.)

The Obama Administration has a lot on its plate. But making post-secondary education affordable again -- and preventing another lending crisis from erupting -- should be one of the first year goals for the White House and the Department of Education.

Friday, January 23, 2009

A Fine Man Steps Down From City Council

The Jackson Free Press is reporting that Leslie McLemore will not seek a third term on the City Council. Dr. McLemore has held the Ward Two seat since April 1999.

I have known Dr. McLemore since I moved to Jackson in 1982. He has a commanding intellect, a kind heart, a deep commitment to the City of Jackson, and the highest possible integrity. We don't often have persons of this caliber in municipal governments anywhere in the United States.

Congratulations to Dr. McLemore for a job well done!

Thursday, January 22, 2009

FYI -- For Those With Continuing Interest in the Scruggs Case

Sentencing for Tim Balducci and Steve Patterson is set for 10:00 a.m., February 13, 2009.

Frank Trapp, Rhea Tannehill, and I represented Sydney Backstrom, so I won't comment on this item.

Wednesday, January 21, 2009

Full Text of Rev. Lowery's Benediction

Courtesy of the Federal News Service, first posted on Lynn Sweet's blog at the Chicago Sun-Times,,
and from there to Facebook by Julie Skipper and Amelia Killcreas, here is the full text of the benediction given by Rev. Joseph Lowery at the Inauguration:

God of our weary years, God of our silent tears, thou who has brought us thus far along the way, thou who has by thy might led us into the light, keep us forever in the path, we pray, lest our feet stray from the places, our God, where we met thee, lest our hearts, drunk with the wine of the world, we forget thee. Shadowed beneath thy hand may we forever stand -- true to thee, O God, and true to our native land.

We truly give thanks for the glorious experience we've shared this day. We pray now, O Lord, for your blessing upon thy servant, Barack Obama, the 44th president of these United States, his family and his administration. He has come to this high office at a low moment in the national and, indeed, the global fiscal climate. But because we know you got the whole world in your hand, we pray for not only our nation, but for the community of nations. Our faith does not shrink, though pressed by the flood of mortal ills.

For we know that, Lord, you're able and you're willing to work through faithful leadership to restore stability, mend our brokenness, heal our wounds and deliver us from the exploitation of the poor or the least of these and from favoritism toward the rich, the elite of these.
We thank you for the empowering of thy servant, our 44th president, to inspire our nation to believe that, yes, we can work together to achieve a more perfect union. And while we have sown the seeds of greed -- the wind of greed and corruption, and even as we reap the whirlwind of social and economic disruption, we seek forgiveness and we come in a spirit of unity and solidarity to commit our support to our president by our willingness to make sacrifices, to respect your creation, to turn to each other and not on each other.

And now, Lord, in the complex arena of human relations, help us to make choices on the side of love, not hate; on the side of inclusion, not exclusion; tolerance, not intolerance.
And as we leave this mountaintop, help us to hold on to the spirit of fellowship and the oneness of our family. Let us take that power back to our homes, our workplaces, our churches, our temples, our mosques, or wherever we seek your will.

Bless President Barack, First Lady Michelle. Look over our little, angelic Sasha and Malia.
We go now to walk together, children, pledging that we won't get weary in the difficult days ahead. We know you will not leave us alone, with your hands of power and your heart of love.
Help us then, now, Lord, to work for that day when nation shall not lift up sword against nation, when tanks will be beaten into tractors, when every man and every woman shall sit under his or her own vine and fig tree, and none shall be afraid; when justice will roll down like waters and righteousness as a mighty stream.

Lord, in the memory of all the saints who from their labors rest, and in the joy of a new beginning, we ask you to help us work for that day when black will not be asked to get back, when brown can stick around -- (laughter) -- when yellow will be mellow -- (laughter) -- when the red man can get ahead, man -- (laughter) -- and when white will embrace what is right.
Let all those who do justice and love mercy say amen.


REV. LOWERY: Say amen --


REV. LOWERY: -- and amen.

AUDIENCE: Amen! (Cheers, applause.)


Rational Idealism Comes to Washington, At Last

The Washington Post and other news outlets are reporting that the Obama Administration has instructed military prosecutors to seek 120-day continuances (postponements) of the military proceedings pending against detainees at Guantanamo Bay. That move, in and of itself, confirms the new Administration's commitment to two major principles:

First, the threat of terror does not change the American belief in due process and funadamental fairness in criminal proceedings.

Second, our adversarial, jury-based system of justice is not only the fairest means of conducting criminal proceedings, it is also the most accurate.

The "Star Chamber" procedure used by the last Administration, by contrast, drowned out the American message to the world that liberty is preferable to tyranny. And there is no evidence it got us anything in return. Did President Bush prevent another terrorist attack by his constitution-shredding methods? There's no way to know. It's like the man with the elephant gun in his living room. When his neighbor says, "but there are no elephants in this area," the man waves his gun and says, "Damn right. Cowards."

Thanks to the Obama Administration for recognizing that we have to live free to be free.

The full story is here:

An Encouraging Sign

From the Mississippi Criminal Defense Law Blog, an interesting article about proposed legislation to ban racial profiling in the State:

As Kevin Frye, editor of the blog, describes the bill, it 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."

Police chiefs of both races testified that profiling is a problem. Frye says "[T]he Legislature should be commended for discussing this critical issue."

Damn straight.

This Was Bound To Happen

Legal "experts" now claim the President should re-take the oath of office that was flubbed by Chief Justice Roberts.

One wonders what we would do without academics. Or maybe one wonders what we accomplish with them?

But let's humor the not-busy-enough folks who commented for this story. Assume someone files a declaratory judgment action against President Obama, seeking a declaration that he is not, in fact, President. Inevitably, it will end up in . . . the United States Supreme Court. Someone tell me which five justices are going to rule that their Chief invalidated the entire Administration?

(Almost) Speechless in Jackson

Ludwig Wittgenstein concluded his first great treatise on philosophy with the words, "Whereof one cannot speak, thereof one must be silent." That is how I have felt about the inauguration of the 44th President of the United States. Here is the closest I can come to describing my views in this momentous time in our history.

The presidency of Barack Hussein Obama marks a drastic leap forward in the tortured history of race relations in the United States. At the same time, President Obama's Administration heralds a new day when the term "liberal" is not a radioactive word that dare not be spoken, but embodies the American people's ideals and mandate.

But I do take exception to the notion that President Obama's election and inauguration fulfills the dream of Martin Luther King, Jr. I think it is only a passageway to that fulfillment. That one African-American man can be elected does not prove that life is now fair for the vast numbers of Americans of racial and ethnic minorities, female Americans, and/or Americans living in poverty. As the President said yesterday, our success is measured by "the reach of our prosperity; on our ability to extend opportunity to every willing heart—not out of charity, but because it is the surest route to our common good."

That is what Dr. King called The Beloved Community.

And that, if we accomplish it, is his Dream.

May our new President and Congress be able to achieve a measure of it.

Monday, January 12, 2009

Is Animal Cruelty a Minor Crime?

Consider the following story from today's Clarion-Ledger.

A horse was allegedly chained by its neck to a tree while being studded. The owner of the horse found him near death, and by the time he returned from calling 911, the horse had, indeed, passed away.

The man allegedly responsible for the death paid a mere $244 to bond out of jail. The case was not charged as a felony because the owner feared he could not prove the value of the horse.

Do we not consider animals -- especially the higher functioning mammals -- to be God's creatures just like us, capable of joy, fear, pleasure, and pain? The minor penalties imposed for wanton cruelty to animals indicate that we do not. That is a plain shame.

Holding Prosecutors Accountable -- Could It Happen Here?

From the Death Penalty Information Center (, an interesting news item:

Death Penalty Misconduct May Force District Attorney's Office into Bankruptcy

The Orleans Parish District Attorney’s office in Louisiana may file for bankruptcy because of a multi-million dollar law-suit award stemming from the office’s misconduct in a death penalty case. John Thompson, a former death row inmate, was awarded $14 million after he was exonerated due to the withholding of evidence by the former District Attorney. Thompson spent 18 years in prison, including 14 years on death row in Angola. The jury award was recently upheld by the U.S. Court of Appeals for the Fifth Circuit. The District Attorney’s office said it can’t pay this and other settlements and will resort to bankruptcy in an effort to stay open. “If those funds aren’t there, those people can’t afford to work for free,” said Rafael Goyeneche of the Metropolitan Crime Commission. “That means it shuts down the district attorney’s office, but it also shuts down the entire criminal justice system.”

The District Attorney’s office was already financially troubled, recently asking the City Council for $2.5 million to avoid laying off 20 workers. “It’s been hard so far – very hard,” said District Attorney Leon Cannizzaro. If the office goes bankrupt, the state's attorney general would have to assume prosecution of cases, but that would take months of preparation and expense since that office does not ordinarily perform this function. ("Orleans Parish DA's Office Faces Bankruptcy,", January 8, 2009).

My Question:

Do the Federal and State Courts in Mississippi have the political courage to hold prosecutors and other law enforcement officials accountable for misdeeds and constitutional violations? The recent lawsuits against Dr. Stephen Hayne and Dr. Michael West may start a new trend here -- unless our judges turn a blind eye to injustice . . .

Sunday, January 11, 2009

2009 Legislation on Capital Punishment Issues

From Mississippians Educating for Smart Justice (

2009 Legislative Update: Capital Punishment

The United States Supreme Court has said that any criminal punishment, including the death penalty should reflect the “conscience of the community,” and its application should be measured against society’s “evolving standards of decency.” Events in our state in 2008 should trouble the consciences of Mississippians. In the past year, we have seen:

· the exoneration of Kennedy Brewer, an innocent man who spent 13 years on death row;

· the exoneration of Levon Brooks, another innocent man who was convicted of murder and imprisoned for 16 years;

· the execution of Earl Berry, a mentally retarded man;

· the execution of Dale Bishop, a mentally ill man who was merely present during a killing while the actual murderer received a life sentence; and

· the forced resignation of Dr. Stephen Hayne, the de facto State medical examiner whose testimony has been crucial in condemning many of the prisoners on Mississippi’s death row.

Thoughtful Mississippi must contemplate the absurdity of continuing a system that has delivered such horrific injustices. Proposals expected to be introduced in the 2009 Legislative Session address these issues.

Compensate the Innocent. More than 120 people have been freed from death row since 1973, after their innocence was vindicated by DNA analysis and other proof. Polls show that the American public is deeply concerned by the prospect of sending more innocent men and women to their deaths. Many are skeptical of such claims, but in the wake of the State’s admission that Kennedy Brewer was innocent of the charges that held him on Death Row for 13 years, we are faced with the likelihood that there are others like him in Parchman.

State Representative Willie Perkins has introduced House Bill 189 and House Bill 200. These bills would compensate people wrongly convicted of crimes. Mississippi is one of the few states without such a system; we send wrongly incarcerated people home with only an apology. To be certain, compensation will never fully redress the wrong inflicted on innocent prisoners and their families, but it will reflect a measure of repentance for that wrong. It may also serve to hold the State’s agents – whether prosecutors, law enforcement officers, or appointed defense counsel – accountable for their misconduct.

Both of Rep. Perkins’ bills have been referred to the House Corrections and Appropriations Committees. They can be followed at:

Stop the Executions of Those Who Do Not Kill. The bipartisan outcry against the unfairness of executing Dale Bishop, a mere accomplice, while the actual killer in the case was sentenced to life, proves that Mississippians do not support the arbitrary application of the death penalty. Of the over 1,100 prisoners executed in the United States Since 1976, Bishop was only the eighth person to be executed who was not either the actual killer or the payor in a murder-for-hire.

As the Clarion-Ledger reported in July 2008, neighboring States such as Louisiana or Alabama would not permit a mere accomplice to be executed. Representative John Mayo has introduced House Bill 29, which would adopt this rule in Mississippi. It has been referred to the House Judiciary En Banc Committee. It can be followed at:

Moratorium. These two proposals, of course, are merely the beginning of a moral response to capital punishment in Mississippi. Those who work with Death Row prisoners know that capital punishment does not deter crime; most persons who commit murder are seriously mentally ill, high on drugs or alcohol, or desperately impoverished. They do not undertake a “cost-benefit” analysis before killing their victim.

The death penalty is not needed to prevent repeat murders. Society is more than adequately protected by incarcerating murderers for life without parole. In that event, if later proof shows the prisoner is actually innocent, he would be alive and could be released and compensated. That is certainly not the case today. And the families of prisoners sentenced to life imprisonment can continue to visit their loved ones; when a prisoner is executed, his or her family suffers as well.

If deterrence and the protection of society are insufficient to justify the death penalty, why keep it? Some argue that the families of victims deserve retribution. This is doubtful both factually and morally. Although the cost per execution varies from state to state, the fact that prosecuting, appealing and inevitably executing those sentenced to death costs much more per case than that of those given a life without parole sentence is indisputable. With 64 death row prisoners in our state, can we afford to continue such a costly and fallible practice?

Spending that same money on assisting the families of murder victims, such as college funds established for minor children of murder victims, low interest mortgage loans, retribution payments, would be a far more Christian response than fostering revenge.

The fact is that more study of these issues is desperately needed. Representative Mayo has sponsored House Bill 145, imposing a moratorium on executions pending such a study. The bill has been referred to the House Judiciary En Banc Committee and can be followed at:

Conclusion. These bills should be important to Mississippians who seek to “do justice, love mercy, and walk humbly before [their] God.” Micah 6:8. They are commended to your further study and support.

Friday, January 9, 2009

More Sin Taxes?

From Natalie Chandler's blog on the C-L, we learn that:

House Ways and Means Committee members had a lively debate over hiking cigarette taxes today.

Quote of the Day goes to House Judiciary B Committee Chairman Willie Bailey, D-Greenville:

"I think we need a tax on all sins, including lying. Then we'd have no kind of revenue problem. (Tax) alcohol, Viagra .. then we'd have no problem with revenue."

My question is:

What about people who lie about drinking while taking Viagra? Do they pay one tax or three?

Who's on first?

Today's Clarion-Ledger reports: "Jackson Police have recovered a stolen dark green 1999 Mercury Marquis and arrested two men who may have used the car to impersonate police officers and rob unsuspecting victims."

My question is: How could the "real" police tell that these guys were impersonators? What if the impersonators had arrested the "real" police officers instead -- what would the City Jail have done?