Thoughts on Judge Harrison and the recusal issue

I'd typed this up in response to Andre's comment to a previous post, but thought it'd be better as an independent post:

To begin with, I concur in the  praise of the appointment of Judge Harrison. I've always enjoyed working with Judge Harrison and his assistant county prosecutors in the past.

Canon 3E(1)(b) of the Code of Judicial Conduct would be applicable here. A plain reading of it would lean towards disqualification. Attorney General's Opinion 2006-00651 dealt with a similar situation. In that opinion, a former ADA had been elected circuit judge. The new judge wanted to preside over criminal cases in the 4 counties in which, as ADA, he did not handle cases. The AG's Opinion held that there was no absolute disqualification for the criminal cases in those 4 counties.

The difference here is that Judge Harrison was the lead county prosecutor in a single county judicial district. I think he's got to wait until new criminal cases start being indicted. In all honesty, that will probably only take a month or two.

Memo to the President: Check Out Gov. Arnold's Idea of a Veto Message

I can't say I agree with everything done by the Governor of my home state, Arnold Swartzenegger. But there's something about his way of vetoing legislation that, I must admit, I admire. Read the first letter of each line of this message and you'll see what I mean (thanks to the San Francisco Chronicle for the story. )

The message is apparently Mr. Schwartzenegger's response to Tom Ammiano, who called the governor a liar and shouted from the audience to "kiss my gay ass" when Schwarzenegger unexpectedly showed up at a Democratic Party dinner in San Francisco on Oct. 7. Ammiano was the author of the bill vetoed by the Governor's acrostically enhanced message.

Ammiano, a comedian by trade (no, I mean in addition to being a politician) took it all in stride, telling the Chronicle, "I think it was very creative, and it's time to bury the hatchet. I'm not interested in prolonging it."

I will pass on the opportunity to spin puns off that quote. But don't you think the Governator's style is something that the President should consider if Rep. "You Lie" Wilson ever gets lucky enough to have a bill passed and sent to him for approval?

Clarion-Ledger Poll on the Death Penalty

Any chance you could take a minute to vote Yes - to do away with the death penalty in Mississippi - in the next hour or two at

www.clarionledger.com/opinion ?

Thanks.

Jim

Heave-Hoh: Don't Let The Door Hit You On The Way Out . . .

Perhaps you have read that Foreign Service Officer Matthew Hoh, assigned to Afghanistan, has resigned in protest over the continued U.S. presence there.

But Hoh didn't just quit. Instead, he made a concerted effort to embarrass the President and call attention to himself, by writing a four-page letter to the State Department's personnel chief, which was then leaked to the press. As reported by the Washington Post, the letter said, among other things:

"I have lost understanding of and confidence in the strategic purposes of the United States' presence in Afghanistan," [Hoh] wrote Sept. 10 in a four-page letter to the department's head of personnel. "I have doubts and reservations about our current strategy and planned future strategy, but my resignation is based not upon how we are pursuing this war, but why and to what end."

The full letter is here:

Hoh Resignation Letter

Sorry, Mr. Hoh, I'm not buying what you're selling. Perhaps we can target our resources in Afghanistan, as suggested by Vice President Biden, more directly at Al-Queda forces there.

But we can't just leave Afghanistan. The prior vacuum in that country allowed al-Queda to organize bases that served as the launchpad for attacks on the United States. It is simply unthinkable to allow that to happen again.

Yes, it's been a long campaign. But that, in part, was due to the Iraq diversion. And BECAUSE we've been there a long time is exactly WHY we need to be sure the forces of al-Queda are stamped out before we leave.

So give our Foreign Service Officer the old Heave-Hoh out the door. No gold watch for him.

A recusal nightmare brewing in Hinds County?

With the announcement that Malcolm Harrison has been appointed to replace Bobby DeLaughter on the Hinds County Circuit bench, concerns are being raised that newly-minted Judge Harrison will be disqualified from presiding over many, if not most, of the criminal cases currently pending on the docket.  In his capacity as County Attorney, Judge Harrison was responsible for prosecuting most of the felony crimes charged in Hinds County during his term as county attorney.  I'd bet that most of the criminal cases currently assigned to the DeLaughter/Harrison docket will be reassigned quickly.  If not, there will likely be a flood of motions for recusal in the coming weeks.

Multiple credible sources both inside and outside of the Hinds County Courthouse are saying...

that Gov. Haley Barbour has chosen Malcolm Harrison, County Attorney for Hinds County, to be the newest Hinds County Circuit Court Judge, replacing Bobby DeLaughter.  I anticipate an announcement very soon. 

Future Hall-of-Famers (of Law)

During last Sunday's game between Minnesota and Pittsburgh, I was struck by the fact that I was watching at least two sure-fire Hall of Fame quarterbacks: Brett Favre and Ben Roethlisberger -- not to mention Adrian Peterson. What a fantastic time to be following the NFL -- like watching Bart Starr or Jim Brown in their prime.

On Thursday evening, November 5, Mississippians Educating for Smart Justice will be celebrating their first annual dinner. Andre' deGruy, director of the Mississippi Office of Capital Defense Counsel, will be honored with the first-ever Kenneth J. Rose Award for Compassionate Advocacy. And Ken Rose himself will be on hand to present the award.

Both Andre' and Ken are sure-fire Hall of Famers. Andre' has set the standard for meticulous preparation and passionate trial advocacy in death penalty cases. The term "compassionate" also applies to his constant focus on his clients, their families, and the victims of crime as individuals who need to be treated with dignity and respect.

Ken Rose, a native of New Orleans, moved to Jackson in the 1980s, where he began representing death sentenced prisoners and teaching others to do so. His concept of "Team Defense" and his insistence that each of his clients were not "killers" but rather individuals -- whose life could not be reduced to their worst act -- inspired and taught those of us who represent death sentenced prisoners today.

Andre' deGruy's style of "compassionate advocacy" mirrors perfectly the early work of Ken Rose -- so the MESJ Board thought this award was a no-brainer.

The invitation for this event is below. Please attend if you can (but RSVP first!) The Knights of Columbus will be catering the event and they are "Hall of Famers" in their own right.

Please join us!


MESJ Dinner Invite

Conference Week

Serious courthouse junkies across the state know that this week is a "conference week" for judges, court administrators, public defenders, court reporters, and prosecutors.  As a result, I'll be away from posting until this weekend at the earliest.

Safe travels to everyone as they head to their respective conferences.

Jackson Chamber of Commerce endorses examination of the Two Lakes plan UPDATED

Yesterday, the Jackson Chamber of Commerce passed a resolution in support of a study of the Two Lakes plan. I'm trying to get a copy of the resolution uploaded now.

***UPDATE***


I've got the PDF of the resolution up now.  Here's a link.

Here's what I know

I know that we live in a state facing momentous challenges.

I know that we continually lack the educational and industrial infrastructure that could help us overcome our adversities.

I know that, after spending well over 100 years in last place in every category that matters, we suffered the effects of a storm unmatched in its ferocity and its devastation, raking from our shores many of the homes, businesses, and people that we loved and depended upon.

I know that, to many, Mississippi is the forgotten ashbin of America.

I know that within those ashes, embers burn.

I know that, throughout the history of our species, the few have been the catalyst for the progress of many, and that every generation has its opportunity to mold the world in its image. 

I know that I am fortunate enough to live amongst a generation of Mississippians unmatched in their creativity, dedication, and ingenuity.

I know there is no challenge greater than our ability.

I know that twenty years from now, no one will doubt this.

I know that the lights are on again in Downtown Jackson.

I know that Tunica is no longer Sugar Ditch.

I know that nature is no match for the resolve of our Coast.

I know that success of this state is the metric by which our generation of Mississippians will be measured.  It is an intellectual, spiritual, and moral challenge.

And I know that we will succeed.

"Taken alone, without any damage having occurred in Louisiana or elsewhere, Katrina's toll on the Mississippi Coast would constitute the greatest natural disaster in American history."

Stan Tiner of the Sun-Herald has an editorial about President Obama's decision to skip the Mississippi Gulf Coast on his recent Katrina swing.  I'm a fan of President Obama, but I'll have to admit that it stings a little bit for him to go only to New Orleans when making a Katrina trip.  The nation's conscious seems to have a blind spot when it comes to Katrina's affect on Mississippi, and his refusal to come here only enlarges it.  I'm aware of the administration's assertions that it has sent more of its Cabinet-level personnel to the Gulf Coast than to any other portion of the country.  I'm also aware of what Stan Tiner wrote:

"Taken alone, without any damage having occurred in Louisiana or elsewhere, Katrina's toll on the Mississippi Coast would constitute the greatest natural disaster in American history."

A visit by President Obama would go a long way towards reminding our fellow Americans (especially Republicans in Congress who try to kill funding bills) that we are still in need of their prayers and support.

Public Citizen suggests that Barbour, Pickering, and Vitter PAC officials would lie under oath

Jackson Free Press investigative reporter has an article up this afternoon entitled "Dirty Laundry," in which he explores the Chip Pickering - Haley Barbour - David Vitter campaign contribution relay we've discussed here.  Lynch got in touch with Craig Holman of Public Citizen, who made a rather bold claim:

Getting answers would require the FEC to conduct a hard investigation that includes the subpoenaing of the treasurers of both PACs to completely prove the case.

"They have to, under oath, discover if there was any kind of direct or indirect agreement to funnel the money to Vitter," Holman said, adding that PAC treasurers are well capable of lying under oath.

James Gill of the Times-Picayune on Chip Pickering; me on the coming crisis in the GOP

James Gill's piece in the Times-Picayune begins:

Let me explain why U.S. Sen. David Vitter might hate to be publicly associated with Chip Pickering, who did not seek re-election as a Mississippi congressman last time around.
Hold onto your hats, now. If it is possible to draw distinctions between the fornicating phonies of the GOP, Pickering must be rated creepier than Vitter.

Gill goes on to focus a bit on the $5,000 campaign contribution shell game played by the PACs for Vitter, Pickering, and Gov. Barbour, but the most pointed parts of the article are barbs reserved solely for Pickering:

Philanderers don't come more unctuous than Pickering, who denounced evil at every turn, received a perfect rating from Focus on the Family and urged then-President George W. Bush to declare 2008 the year of the Bible.

Even a congressman who has embraced hookers in private while embracing the Lord in public might not wish to be dragged down to Pickering's level.

All of this brings to mind the most important part of the Pickering scandal for Mississippi Republicans, and the C Street scandals for the national GOP.

Gov. Barbour to call special session around Halloween...

I've received word that Gov. Barbour will call a special session of the legislature later this month.  I'm not certain how much more I'm allowed to say at this point, but it's for a good purpose, it appears.

Not Even the Rams Deserve Rush

Dan Wetzel of Yahoo! Sports has a great column out today about Rush Limbaugh's attempt to purchase an interest in the St. Louis Rams. It seems that there are enough owners out there who are willing to veto the Big-Bellied Bully from NFL-dom.

As Yahoo! Sports reported earlier in the day, NFL Commissioner Roger Goodell has rung the death knell on Rush's bid:

“I’ve said many times before, we’re all held to a high standard here and I think divisive comments are not what the NFL is all about,” Goodell said of Limbaugh’s history for controversial remarks during the league’s annual fall meetings. “I would not want to see those comments coming from people who are in a responsible position in the NFL, absolutely not.”

Wetzel's analysis is on target:

So a group of almost exclusively white, almost exclusively conservative men – many of whom no doubt share Limbaugh’s political views and even listen to his radio program – are turning their back on the host.

He and his supporters can cry about bias and political correctness run amok. They can scream about the Constitution. They can bemoan double standards.

The fact is you live by the sword, you die by the sword. Limbaugh made his money through his words. Now those words are denying him a business opportunity in a league that prides itself on inclusion.

* * * *

The NFL is a private organization and, as some of Limbaugh’s followers would surely agree, they mostly have the right to choose who they do or don’t allow to join the club.

Indeed. Would any business that depends on African-American consumer support want to have a partner who said this:

I mean, let’s face it, we didn’t have slavery in this country for over 100 years because it was a bad thing. Quite the opposite: slavery built the South. I’m not saying we should bring it back; I’m just saying it had its merits. For one thing, the streets were safer after dark.

You know who deserves a posthumous Medal of Honor? James Earl Ray [the confessed assassin of Martin Luther King]. We miss you, James. Godspeed.

And best of all:

Look, let me put it to you this way: the NFL all too often looks like a game between the Bloods and the Crips without any weapons. There, I said it.

Look, let me put it to YOU this way: Rush Limbough all too often looks like a mean-spirited, fat bigot. There, I said it.

Not even the Rams deserve this loser. Good riddance.

An observation about my blogmate's post on the Pickering v. Pickering hearing last week

When word came down earlier this year that Leisha Pickering had switched lawyers, many people (most of them GOP folks looking for a way to defend Chip) engaged in speculation that Leisha must be a difficult client, or that she had some other fault that led to her having issues maintaining consistent representation.

Now that Chip's switched lawyers, I fully expect y'all to say the same things about him.  (I'm not holding my breath, though.)

Back from vacation odds and ends...

I'm back from vacation, and am trying to catch up on a few things.  Here's what's on my radar blog-wise:

1.  Casey Ann mentioned a problem with the button used to write Jim and I a message.  I tested it, and it's not working for me either.  I'll try to figure that out ASAP.

2.  Judge Yerger sentenced Justin Larun Lomax to 75 years in prison yesterday for three counts of house burglary.  The maximum sentence for each count was 25 years, so he got the max on all three.  Mr. Lomax, 19, had entered an "open" plea, meaning he pled guilty without a recommendation from the DA with respect to sentencing.  Mr. Lomax also pled guilty to another house burglary and an aggravated assault.  He had also been charged with shooting into an occupied dwelling, possession of a stolen firearm, and possession of a stolen firearm while in the commission of a crime in connection with the house burglary and aggravated assault, but those three charges have been remanded.  Judge Hilburn will sentence Mr. Lomax tomorrow on the house burglary and aggravated assault.  Lomax pled open on those as well.  By my calculations, the 19 year-old Lomax will not be eligible for release until somewhere north of his 55th birthday.  Ouch.

3.  Alan Michael Rubenstein of Marrero, LA, was resentenced to life without parole after the Mississippi Supreme Court, in 2006, overturned a death penalty sentence handed down by a Pike County jury in 2000.  It was a heinous case, but the language of the statute altering the sentencing options on capital murder cases was fairly clear at the time.  The MSSC sent the case back for resentencing because the jury had not been given the option of life without parole, despite a 1994 amendment to the statute that clearly provided for that option, regardless of when the crime itself occurred.  Here's a link to the MSSC's opinion.  (Easley wrote the dissent, of course.)

4.  There's been no docket entry in Leisha Jane Pickering v. Elizabeth Creekmore Byrd since the deposition subpoenas were issued back on July 23, 2009. 

The Mississippi Supreme Court revises the Mississippi Electronic Courts Administrative Procedures

Last month, the Mississippi Supreme Court saw fit to restrict electronic access to certain types of court files in the Mississippi Electronic Courts system, known as "MEC".  Prior to the change, only sealed files were hidden from public view.  Now, the Court has altered its restricted access definition to include the following types of cases:

Debt Collection; Garnishment; Replevin; Child Custody/Visitation; Child Support; Divorce: Fault; Divorce: Irreconcilable Differences; Modification; Paternity; Termination of Parental Rights; Birth Certificate Correction; Conservatorship; Guardianship; Minor's Settlement; Protection from Domestic Abuse Law.

Under MEC, there are four types of "special" items.  Sealed files, sealed documents, documents submitted for in camera review, and restricted access files.  A sealed file may not be viewed at all on MEC.  All searches for a sealed file fail to produce any results whatsoever.  Only court personnel can even see that the case exists.  (Think the Pickering divorce case.)  Sealed documents and documents submitted for in camera review will be reflected with a docket entry that says either "sealed document" or "document submitted for in camera review," but, like sealed files, the documents themselves will only be viewable by court personnel.  (Think Chip Pickering's diary in the attendant alienation of affection suit.)  Restricted access files show up in search results, but the internet MEC user may only view the docket, not the pleadings themselves.  (Think your divorce or your neighbor's.)  In order to view the pleadings, a member of the public can go to a public terminal at the courthouse.

I have been told that the reason the above-listed types of cases were selected for restricted status is that identity thieves could have a field day with the large amount of personal information typically contained in these pleadings.  I understand the position, and agree that the redaction requirements would be rather burdensome.

What do y'all think?

Pickering Hearing Report

The hearing in Pickering v Pickering ended a bit before 11.  There were no witnesses; the woman I saw with Mrs Pickering's group was one of two paralegal/investigator types who were with McRae.  They would not comment.

The records and hearings are still closed at this point. 

Update - Pickering Hearing

The courthouse hall buzz is that McRae, on behalf of Mrs Pickering is arguing a motion to recuse Judge Brewer.

More on Pickering Hearing

The buzz outside the courtroom is that Chip Pickering has fired Richard Roberts and hired Mike Malouf, and that McRae has subpoenaed Roberts. There is a 40-ish woman with short blonde hair who was with Mrs Pickering but left the courtroom.  Presumably she is a witness for Mrs Pickering.

Pickering Hearing

I am in Chancery Court in Madison County today, and I see that behind closed doors, there is a hearing going on in the Pickering divorce.  Mike Malouf for Mr Pickering, Chuck McRae for Mrs Pickering. 

See No Evil: Texas Governor Fires Commissioners Investigating Willingham Innocence Claim

The Death Penalty Information Center (DPIC) reports this interesting story:

On September 30, Texas Governor Rick Perry replaced the chairman and two members of a state commission that is investigating whether inaccurate evidence of arson was presented at the trial of Cameron Todd Willingham, who was executed in 2004. The state’s Forensic Science Commission was scheduled to conduct a public hearing in two days and receive testimony from Craig Beyler, a nationally known expert who called the Willingham investigation “slipshod,” and concluded that “almost all of the evidence presented [w]as based on junk science.” Beyler's report for the Commission concluded that “no credible evidence existed to believe that the fire, that killed three children, was caused by arson.”

Governor Perry denied Willingham’s request for a stay of execution five years ago that would have allowed the courts time to review new reports questioning the fire investigation. Perry has continued to discount forensic-expert Beyler’s conclusions and to argue that there is evidence of Willingham’s guilt. The governor said that the three commission members were all at the end of their terms and dismissing them was “pretty standard business as usual." The Commission's scheduled hearing has now been cancelled.

President Truman famously said, "If you can't stand the heat, get out of the kitchen!"

But when you're Governor of Texas, it's more like, "if you can't stand the heat, fire the cook!"

I guess "I've made up my mind, don't bother me with the facts" is a Texas executive prerogative.

Obomb-Bomb-Bomb, Bomb-Bomb Iran?

During the 2008 campaign, a video of Republican candidate Sen. John McCain singing "Bomb-Bomb-Bomb, Bomb-Bomb-Iran" (to the tune of the Beach Boys' "Barbara Ann") made the rounds. It was even discussed during one of the Presidential debates.

Now ABC News is reporting that the Obama Defense Department is seeking funds, through the emergency appropriations bill for the Iraq-Afghanistan conflicts, to accelerate the development of "a gargantuan bunker-busting bomb called the Massive Ordnance Penetrator (MOP). It's a 30,000-pound bomb designed to hit targets buried 200 feet below ground."

ABC continues:

The notification says simply, "The Department has an Urgent Operational Need (UON) for the capability to strike hard and deeply buried targets in high threat environments. The MOP is the weapon of choice to meet the requirements of the UON." It further states that the request is endorsed by Pacific Command (which has responsibility over North Korea) and Central Command (which has responsibility over Iran).

* * * *

The request was quietly approved. On Friday, McDonnell Douglas was awarded a $51.9 million contract to provide "Massive Penetrator Ordnance Integration" on B-2 aircraft.

This is not the kind of weapon that would be particularly useful in Iraq or Afghanistan, but it is ideally suited to hit deeply buried nuclear facilities such as Natanz or Qom in Iran.

My two cents: Bring It On, Mr. President. You can't enforce nuclear non-proliferation without this kind of weapon. Either the U.S. does this, or nobody does; and "nobody" is not an option.

Louisiana Democratic Party's Federal Elections Commission Complaint Against PACs for Vitter, Barbour, and Pickering

I got my hands on the Complaint filed by the Louisiana Democratic Party (LDP) mentioned earlier this morning. The respondents named in the complaint are CHIP PAC, Chip Pickering, Danna Lane (CHIP PAC Treasurer), Haley's PAC, Austin Barbour (Treasurer for Haley's PAC and Haley's nephew), David Vitter for U.S. Senate, and William Vanderbrook (Treasurer for David Vitter for U.S. Senate).  The complaint does not charge Haley Barbour or David Vitter, personally, with any wrongdoing.

The LDP alleges four violations of federal law:

1.  Making a Contribution in the Name of Another
2.  Permitting Your Name to be Used in a Conduit Scheme
3.  Accepting a Contribution in the Name of Another
4.  Individuals who Assisted in Making a Contribution in the Name of Another


They ask that the respondents be fined, and that the DOJ prosecute any willful violations.  Interesting....

Louisiana Democratic Party files FEC complaint against Haley Barbour, Chip Pickering, and David Vitter

Jonathan Allen at Politico just broke this:

The Louisiana Democratic Party plans to file a formal complaint with the Federal Election Commission today, charging that Barbour’s PAC essentially filtered a $5,000 campaign donation from Pickering’s PAC to Louisiana Vitter’s 2010 re-election committee to make it look like the contribution didn’t come directly from Pickering.

You heard about the fundraiser, and the subsequent problematic campaign contributions here first.

An inside look at the C Street "Family" that Chip Pickering was involved in...

Prior to the allegations surrounding former U.S. Rep. Chip Pickering's marital life, I'd never heard of "The Family," and I'll bet you had not either.  Jeff Sharlett wrote a book on the organization, but frankly I've heard it's less about this odd organization than a critical history of American Evangelicalism.  Sharlett wrote a piece for Harper's that is quite long, but quite fascinating.  I highly recommend it.  Here's an excerpt that may help us understand why Pickering would have felt so comfortable conducting his affair at the Family's house, if the allegations in the lawsuit are true:

The answer, we discovered, was that King David had been “chosen.” To illustrate this point David Coe turned to Beau. “Beau, let's say I hear you raped three little girls. And now here you are at Ivanwald. What would I think of you, Beau?”

Beau shrank into the cushions. “Probably that I'm pretty bad?”

“No, Beau. I wouldn't. Because I'm not here to judge you. That's not my job. I'm here for only one thing.”

“Jesus?” Beau said. David smiled and winked.

Update: Supreme Court Will Review Second Amendment Again

Many times during her confirmation hearings, Justice Sonya Sotomayor was asked whether the Second Amendment applied to tge States by "incorporation" into the Fourteenth Amendment's Due Process Clause. Her refusal to unequivocally agree with that assertion was one of the main reasons given against her confirmation by, among others, Senator Roger Wicker of Mississippi.

Yesterday, the Supreme Court granted certiorari in the Seventh Circuit decision which presents that exact issue. We discussed the case a few days ago.

Perhaps, as Senator Wicker suggests, the reliance on nineteenth-century precedent (notably, the Slaughter-House Cases, which we discussed in our earlier post) in deciding Bill of Rights cases should be overruled. It's not a bad idea. Why not, in the context of this case, decide that ALL of the Bill of Rights are enforceable against the States through the Fourteenth Amendment?