BP says the top kill procedure seems to be working

AL.com has a blog post up describing the cautious optimism BP's doling out this morning.  Apparently, the well's no longer spewing oil and gas.  Which all makes me wonder: why on Earth wasn't this Plan A?

My cynical answer is "Because this plan prevents BP from getting oil out of this well, while the others would allow them to keep producing it."

Willie Morris warned me there'd be days like this

The morning after the Transocean-sponsored memorial to the 11 fallen oil rig workers here in Jackson, the New York Times brings us word that there were signs of impending trouble on the Deepwater Horizon in the hours before the blast.

Meanwhile, PBS brings us word that an upcoming Live from the Artists Den will feature The Black Crowes from The Lyric in Oxford.

Some thoughts on Bardwell's post regarding Flowers v. State

Will Bardwell's got an interesting post up on his blog about the Mississippi Supreme Court granting cert on Ronregus Flowers v. State.  What interests me the most isn't Will's post per se, as I believe he's correct on the law.  What really grabbed my attention was a comment by "gogsalks."  This "gogsalks" person may or may not practice criminal law in some form in Mississippi, but he/she puts forth a line of reasoning I've seen pushed by prosecutors before, and it's time to put it to rest.

Essentially, the prosecution argument goes like this: "Judge, deny this jury instruction on a lesser included offense/defense, as there's no credible testimony/not enough testimony in the record to support it."  And that's the argument the commenter seems to be making on Will's post when he/she says "his story makes no sense."

Here's where, in my opinion, that's wrong.  Settled law in Mississippi says that, if there is any evidence in the record to support the giving of an instruction on a lesser included offense (or defense), then that instruction must be given.  McGowan v. State, 541 So. 2d 1027, 1028-29 (Miss. 1989).  Furthermore, the evidence in the record concerning the lesser included offense must be viewed in the light most favorable to the defendant.  Mease v. State, 539 So.2d 1324, 1330 (Miss. 1989) (quoting Harper v. State, 478 So. 2d 1017, 1021 (Miss. 1985)).  It's certainly not the trial judge's job to pass judgment on the believability of that evidence.  Rather, the trial judge's job is to determine whether or not that evidence, if believed, could provide the basis for a vote of not guilty amongst fair-minded jurors. Graham v. State, 582 So. 2d 1014, 1018 (Miss. 1991).

Put more simply, a trial judge can't say "I don't believe you, Mr. Defendant, so I'm denying your instruction."  The trial judge CAN, however, say "your testimony, if believed, does not meet the elements of the defense you seek to offer through your instruction."

Hopefully the MSSC will shed a little more light on this issue, and help clear up any confusion down here at the trial level.

State Killing Makes Strange Bedfellows

Yesterday's Clarion-Ledger story on preparations for the two executions at Parchman this week had this interesting bit on Mississippi Department of Corrections Commissioner Chris Epps:

Department of Corrections Commissioner Chris Epps said he will start today with a prayer.

"An execution affects different people in different ways," said Epps, who has been commissioner since 2002 and has overseen six executions to date. "I've seen people faint when we had the gas chamber."

"I'm a Christian and a deacon. There's a certain preparation I have to do to get ready. I pray, is the first thing I do. I talk to my family and my pastor and I ask for faith to carry out my duties as commissioner."

Guess what, Commissioner Epps? Osama Bin Laden did the VERY SAME THING in preparation for the September 11, 2001 killings of the Americans he considered murderous infidels. In a September 2006 report, CNN said:

A video has been released showing al Qaeda leader Osama bin Laden meeting with suspected terrorist Ramzi Binalshibh, purportedly as they prepare for the September 11, 2001 attacks, according to Al-Jazeera, which aired the tape Thursday.

* * * *

In one of the segments of the tape, bin Laden tells his compatriots that the news from "the brothers who went out for martyrdom operations ... is delightful."

"And I strongly advise you to increase your prayers for them and beseech Allah the Exalted in your prayer to grant them success, make firm their foothold and strengthen their hearts," the al Qaeda leader says.

Now, I would prefer to think that the God that Mr. Epps prays to is different from that worshipped by Mr. bin Laden. But assuming that by identifying himself as a Christian, Mr. Epps believes that the Supreme Being became a human person named Jesus of Nazareth, that pre-execution prayer must have been an interesting conversation. You recall when the Pharasees brought Jesus a woman who had broken a law punishable by death, he responded, "If any one of you is without sin, let him be the first to throw a stone at her." John 8:7.

Do those of us who call ourselves "Christian" really think that this same Jesus is God? Or do we, instead, worship a God who allows us to take revenge in a haughty spirit of hatred?

WAPT Jumps the Gun on the Holland Execution

As of 3:50 pm today, WAPT has posted a website story claiming that Gerald James Holland has been executed. Actually, the Mississippi Supreme Court's Order does not allow the State to kill Mr. Holland until 6 p.m. tonight.

I guess the website editor wanted to leave early? Or maybe they've become so addicted to exit polls that forecast elections that they think they can report future facts?

More on Karen Irby's assertion that Stuart Irby assaulted her in the car that night

Yesterday, I took a minute and examined the court's files on State v. Karen Irby. and the wrongful death action  In the criminal case file, there were some motions, in limine and otherwise, that were interesting, but the plea petition itself shed a bit of light on things as well.

As was rumored, there was a defense motion to obtain the "blackbox" from the Irby Mercedes.  It was granted, so we can assume that angle was explored by the defense prior to plea.  Also, there were two motions in limine concerning beverage containers found at the scene.  The defense wanted to keep the State from mentioning a beer can apparently found outside of the Mercedes, and a "drinking glass" found in it.  In addition, there was a defense motion to prevent the State from mentioning Karen Irby's prior DUI conviction from the late 90's.  The conviction was overturned on appeal.

Then it gets interesting.  In Mississippi plea petitions, the defendant states what he or she believes the elements of the crime to be.  Then, the defendant states what actions he or she took, and swears that those actions meet the elements of the crime.  In Karen Irby's petition (filed March 29), she says that while she was driving the car Stuart Irby began yelling at her and assaulting her.  She then says she sped up and crossed into oncoming traffic, and that she had consumed two glasses of wine, and that her BAC was .09. Oddly enough, she doesn't make a causal nexus between the supposed assault and the bad driving in her plea petition.


We flash forward to May 11, and Karen Irby's claiming that she's not liable for civil damages because of what she alleges in the plea petition.  In addition to that, the families of the victims are right there with her, blaming this whole ordeal on Stuart Irby.  That's disjunctive to me.  So what happened between March 29 and May 11?  Well, in the wrongful death file, there's a notice of deposition for Karen Irby, set for May 10 in Courtroom 6 of the Hinds County Courthouse.  My guess is that the families were in attendance, and that they heard Karen Irby's allegations there in detail, and believed them.

A note on HBO's Treme

HBO is absolutely killing it right now with The Pacific and Treme, two shows I've enjoyed as much as any I've ever seen.  I have two observations about Treme that I want to share and hopefully get some feedback on.  First, I have an overwhelming sense of foreboding in nearly every scene of every episode.  It feels like all hell is about to break loose at any moment.  I'm pretty sure that's intentional. If so, well done, David Simon.  The suspense adds to the edginess of post-Katrina New Orleans, and wears on the viewer in a way that makes you appreciate the grittiness of life there at that time. 

The second observation is grounded in the first, and, according to my NOLA-based friends, has been floated as rumor around the city ever since these two characters appeared in Episode 2.  Are Annie and Sonny, the street musicians, bound to be the fictionalized version of Addie Hall and Zackery Bowen?  In one of the most gruesome homicides I know of, Zackery Bowen strangled his girlfriend, Addie Hall, and then proceeded to dismember and cook her remains.  Zackery was a worthless layabout, and seems to mirror Sonny in some ways.  Zackery and Addie actually did "rough it" in the French Quarter immediately after the storm, as Sonny loves to tell everyone he and Annie did.  In real life, Addie flashed the police to get them to stick around, providing extra protection for her area.  In Treme, Sonny tells of how Annie did the same.

There are differences between Zackery and Sonny, and certainly between Annie and Addie, however, that might mean we're not about to witness a rather shocking and horrifying twist to Treme.  Zackery and Addie were bartenders, while Sonny and Annie are musicians.  (NOLA tip: Zackery tended bar at Buffa's, which serves a mean breakfast.)  Zackery was from L.A., while Sonny's Dutch.  Addie had a bit of a drug problem and a quick temper, while Annie seems to be a rather calm and nice straight arrow.  In the end, there certainly are more differences than similarities.  But I can't help getting that feeling this will end terribly for Annie.  I, for one, hope that Annie strangles and cooks Sonny, as he's easily my least favorite character on TV.  I guess we'll watch and see.

P.S. - Here's the Times-Pic's blog on Treme.