Hinds County District Attorney Robert Shuler Smith asked the Mississippi Supreme Court to dissolve a court order barring him from participating in cases. Mr. Smith was arrested and charged with six misdemeanor counts of improperly helping criminal defendants. Hinds County Circuit Judge Jeff Weill issued the order shortly after the arrest took place. The D.A. also asked the County Court of Hinds County to unseal several documents that he claims will help his case. The various motions provide new information and a look at what has been taking place behind the scenes in Hinds County. Mr. Smith apparently tried to bring one judge before a grand jury. The filings are posted below.
The motion submitted to County Court states:
On March 30, 2016, a hearing was held before Circuit Court Judge Jeff Weill, Sr., in which an Assistant Attorney General alleged that Smith was aiding criminal defendants. Over Smith’s objection, and upon request of an assistant attorney general, Circuit Court Judge Weill sealed the hearing.
The hearing produced exculpatory evidence in the form of testimony by FBI Agent Culpepper (No relation to J.W.). “[T]he suppression of prosecution of evidence favorable to the accused upon request violates due process. . . .” Brady v. Maryland, 373 U.S. 83, 87 (1983). The hearing is improperly sealed in violation of the guidelines ordered by the Mississippi Supreme Court in Gannett River State Publishing Co. v. Hand, 571 So.2d 941, 945 (Miss. 1990)*.
ACCORDINGLY, Defendant Smith requests that this Court direct the court reporter, Tesa Barrett, to furnish his attorney, Jim Waide, with the transcription of the proceedings concerning him in Cause No. 251-16-120.
This case is a drug prosecution against Christopher Butler. Butler is a previously convicted drug dealer. The Attorney General is also prosecuting him for consumer fraud. JJ reported earlier this year that the D.A. tried to withdraw the case against Butler. However, Judge Weill refused to dismiss the indictment because the D.A. made an oral motion to do so and did not provide one in writing.
Judge Weill barred the District Attorney from participating in any cases after his arrest. One charge in the affidavit supporting the arrest warrant alleged that Mr. Smith tried to get a grand jury "to pressure a sitting judge" to drop charges against Christopher Butler. Judge Weill's order states:
Based upon the extensive findings of a sealed report by Special Master Amy Whitten and a sealed order of Senior Circuit Judge Tomie Green, the district attorney has been engaged in improper use and abuse of the sacred grand jury process. Despite a clear ruling requiring regularity in the grand jury process, the improprieties have continued very recently, according to sealed filings submitted earlier this week. The undersigned cannot simply ignore the fact that the district attorney is taking actions consistently contrary to the sacrosanct legal purpose of the grand jury. Accordingly, the undersigned finds it necessary, under these unusually exigent circumstances, to disqualify the district attorney from all participation and knowledge in the grand jury process. This includes a prohibition from participation by proxy through directing any district attorney staff members....The D. A. appealed this order to the Mississippi Supreme Court Monday. The "Motion for Writs of Prohibition and Mandamus with Respect to Order Stripping Him of His Duties as District Attorney" provides some interesting information:
Smith requests this Court prohibit enforcement of the Administrative Order of Immediate Temporary Disqualification of the Hinds County District Attorney. Further, Smith requests that this Court order the Hinds County Circuit Court to unseal files which are sealed in violation of the First Amendment to the United States Constitution, and in violation of this Court's precedents. Grounds for this motion are as follows:
On June 22, 2016, Smith was arrested by the Attorney General's office based on a criminal affidavit of an Attorney General's investigator. A copy of that affidavit is attached hereto as Exhibit "A." At the time of his arrest, Smith had been involved with an ongoing dispute with the Attorney General's office regarding the handling of criminal cases. Smith planned to present matters pertinent to one of these criminal cases to the Grand Jury on June 23, 2016, but his arrest prohibited his doing so. (Does this mean that the D.A. was going to try to indict two prosecutors for the Attorney General?)Smith argues Judge Weill's action is improper because
Judge Weill gave Smith neither notice of a hearing nor a hearing before entering the Order attached hereto as Exhibit "B." Smith had no prior notice that Judge Weill was considering removing him from the duties of his office, or that Judge Weill was considering any other action against him.
3. The Order bars Smith "from any and all participation, either directly or indirectly, in
any grand jury proceedings in Hinds County."
The Order removes crucial parts of a district attorney's duties without his having been
indicted or convicted. Mississippi Constitution § 175 requires indictment by a Grand Jury and
conviction in order to remove any public officer from office "for wilful neglect of duty or
misdemeanor in office." MISSISSIPPI CODE ANN OT A TED § 97-11-3 provides that a district attorney may be removed from office upon conviction of either a crime or misdemeanor....
Similarly, there is no constitutional provision or even a statute that gives any judge the
authority to remove a district attorney from the duties of his elected office except upon indictment and conviction....
Additionally, evidence indicating that Smith is innocent of aiding criminal defendants was
adduced in another sealed hearing held on March 30, 2016 in sealed Cause No. 251-16-120.
Removing Smith's duties based upon sealed hearings, to which Smith has no access, is
fundamentally unfair. Smith cannot know the "nature of the charge" (United States Constitution,
Amendment Six) without examining the transcript of the sealed hearing upon which the charges
against him are based. Furthermore, "the suppression of the prosecution of evidence favorable to
the accused upon request violates due process where the evidence is material either to guilt or to punishment. ...
Then this little bombshell is buried on the eighth page of this request:
District Attorney Smith and Circuit Judge Weill were very recent adversaries in a proceedingWhoa!!! A D.A. tried to subpoena a sitting judge before a grand jury? For what? THAT is very interesting news and is something one rarely sees taking place in the courthouse. The email was sent to Mr. Smith, Judge Tomie Green and her staff attorney, and Louann Jackson. The email is heavily redacted and it is virtually impossible to determine the substance of the email or the nature of this quiz. The email does state that the Attorney General filed a motion "on behalf of Judge Weill, an A.G. employee, an investigator, and MDOC employees.
in which Smith had attempted, unsuccessfully, to subpoena Judge Weill. See, Redacted email from
Amy Whitten, attached hereto as Exhibit "H."
Mr. Smith also asked the Court to order Judge Weill to unseal all the files. Tupelo attorney JIM Waaaaaaaaaiiide represents Mr. Smith.
Kingfish note: It might be time to create a diagram for this entire saga.
Now for some opinion. It will not be surprising if the Court rules in the D.A.'s favor and dissolve's Judge Weill's order. JJ is going out on a limb but the D.A. was arrested on misdemeanor charges. He has not been convicted and there is the Gannett case. Supreme Courts take a particular interest in concepts such as notice and due process when a punitive measure is involved.
One problem with this entire story is there are too many sealed files and reports. There is an entire discussion that is taking place on another level and behind closed doors between the judges, District Attorney, and prosecutors. How can the public hold all of these elected officials accountable if everything is sealed? It is big news that a D.A. tried to bring a judge before a grand jury (Haven't really seen that reported much, have you?) However, the D.A. might want to remember he has sealed his own actions. The CL reported last week:
So the District Attorney apparently filed a contempt of court motion against two prosecutors from the Attorney General's office in March over the Christopher Butler case. JJ reported on the hearing that so irked the D.A. and posted the transcript.
According to his letter to Knott, Smith filed a motion for contempt of court in March “due to blatant and contemptuous behavior of Assistant Attorneys General Patrick Beasley and Shaun Yurtkuran.” The attorney general's office scheduled a hearing without telling Smith, and the court held that Smith had waived his right to object because he didn’t attend, according to the letter.
However, a review of court files reveals no contempt of court motion as mentioned in the letter to Mr. Knott. The lack of the motion begs the question: does the letter actually exist or does it exist under seal? A judge can impose a fine upon the defendant or throw him in jail for contempt of court. Thus it must be asked if the D.A. tried to throw them in jail or at least fine them for that hearing?
The D.A. and his attorney have protested mightily over sealed motions and reports. Mr. Waide and his client should release any similar sealed motions if any exist.
Beginning with the principle that the press and public are entitled to notice and a hearing before a closure order is entered, we hold that any submission in a trial court for closure, either by a party or on the court's own motion, and be it a letter, written motion, or oral motion either in chambers or open court, must be docketed, as notice to the press and public, in the court clerk's office for at least 24 hours before any hearing on such submission, with the usual notice to all parties. This requirement should not be taken to mean that a greater notice period may not be afforded where feasible. Preferably the submission should be a written motion if time and circumstances allow.
A hearing must be held in which the press is allowed to intervene on behalf of the public and present argument, if any, against closure. The movant must be required to "advance an overriding interest that is likely to be prejudiced, the closure must be no broader than necessary to protect that interest, the trial court must consider reasonable alternatives to closing the proceedings, and it must make findings adequate to support the closure." Waller v. Georgia, 467 U.S. 39, 48, 104 S.Ct. 2210, 2216, 81 L.Ed.2d 31, 39 (1984). In considering the less restrictive alternatives to closure, the court must articulate the alternatives considered and why they were rejected. Then the court must make written findings of fact and conclusions of law "specific enough that a reviewing court can determine whether the closure order was properly entered." Press-Enterprise I, 464 U.S. 501, 510, 104 S.Ct. 819, 824, 78 L.Ed.2d 629, 638 (1984). A transcript of the closure hearing should be made public and if a petition for extraordinary relief concerning a closure order is filed in this Court, it should be accompanied by the transcript, the court's findings of fact and conclusions of law, and the evidence adduced at the hearing upon which the judge bases the findings and conclusions.