The prosecution of Hinds County District Attorney Robert Shuler Smith took several twists and turns last week. The D.A. tried to get a hearing while the Attorney General tried to prevent attorney Jim Waide from defending Mr. Smith. Attorney General Jim Hood arrested Mr. Smith and charged him with six misdemeanor counts of improperly helping criminal defendants and using a grand jury to pressure a judge.
All County Court judges in Hinds County recused themselves from handling the case. The Mississippi Supreme Court appointed special Judge James Bell to preside over State of Mississippi v. Robert Shuler Smith. Mr. Smith argued in a motion to dismiss that the Mississippi Constitution requires his indictment before he can be prosecuted and removed from office. He also asked the court to unseal several documents and transcripts from other cases.
Mr. Smith filed a notice that scheduled a hearing for August 18 at 9:30. He asked the court rule on his
Motion for Immediate Dismissal Based Upon Admission of Mississippi Attorney General, Motion to Be Provided Transcripts of Sealed Proceedings and Copies of Documents Filed in Sealed Proceedings, Second Motion to Be Provided Transcripts of Sealed Proceedings and Copies of Documents Filed in Sealed Proceedings, Motion to Dismiss for Lack of Indictment by Grand Jury, and Motion for Extraordinary Relief for Appointing a Special Prosecutor in Lieu of the Mississippi Attorney General from Prosecuting Any Cases Against Robert Shuler Smith, on Thursday, August 18, 2016, before Special Circuit Court Judge James D. Bell, in the Circuit Court of Hinds County, Mississippi, at 9:30 a.m., or as soon thereafter as counsel may be heard.However, the Attorney General asked the court on Thursday to postpone the hearing:
the State of Mississippi, by and through the Office of the Attorney General, and requests this honorable Court to stay all proceedings in this matter pending the resolution of a Motion concerning the grand jury which has been presented to Special Judge Larry E. Roberts.
Wherefore, premises considered, the State of Mississippi respectfully requests this honorable Court to stay all further proceedings in this matter – including the hearing set for August 18, 2016 – pending resolution of the Motion concerning the grand jury.
The prosecution was not done firing at the defense as it filed a motion to disqualify Attorney Jim Waide from representing Mr. Smith. The motion stated
the State of Mississippi, by and through the Office of the Attorney General, and moves this honorable Court to disqualify defense counsel, Jim Waide, from representing the defendant in this matter. In support of its motion, the State of Mississippi would show the Court the following:
1. Attorney Jim Waide entered his appearance as counsel of record for the defendant, Robert Shuler Smith (“Smith”), in this action on June 29, 2016. See Dkt. No. 5.
2. On the very next day, June 30, 2016, the State of Mississippi, through Special Assistant Attorney General Larry G. Baker, wrote Attorney Waide a letter advising him of the State’s view that since he may be a witness in this case, that he could be disqualified from representing Smith pursuant to Rule 3.7 of the Mississippi Rules of Professional Conduct. See Exhibit A.
3. In a telephone conversation with Special Assistant Attorney General Robert G. Anderson on July 1, 2016, Mr. Waide was again advised of the State’s view that he is a likely witness in this case and could be disqualified from representing Smith. Notwithstanding the State’s statement of its position that Waide is a likely witness in this case, he has filed a number of motions on behalf of Smith.
4. The State is mindful of that fact that the issue of disqualification should be raised in a timely manner so as to avoid any suggestion that the State has waived the issue of disqualification. See Colson v. Johnson, 764 So.2d 438 (Miss. 2000). At this point in time, there have been no hearings in this Court and none of the motions on file have been taken up by the Court as yet. For that reason, the State of Mississippi now urges the Court to disqualify Jim Waide from representing Smith further in this case.
6. Even before the Mississippi Rules of Professional Conduct were adopted, the Mississippi Supreme Court had ruled that if an attorney or prosecutor is aware before trial that he will be a necessary witness, he should withdraw....
In this case, the State has brought charges alleging that Smith, while acting in his capacity as District Attorney, willfully and unlawfully consulted, advised and counseled Christopher Butler, a defendant who had been charged with embezzlement and wire fraud in the First Judicial District of Hinds County, Mississippi. See Affidavit, Dkt. No. 1. Smith was arrested on the charges filed in this case on June 22, 2016. As part of its case-in-chief in this matter, the State intends to offer evidence that Smith had one or more conversations with Attorney Jim Waide regarding Smith’s attempts to assist Christopher Butler in connection with the pending charges against Butler. For example, in one recorded conversation between Smith and a confidential informant, Smith stated the following: “So we got Jim Waide . . . “ and “he [Waide] came down here straight from New Orleans when I called him. . . .” In a further discussion with the confidential informant about Waide, Smith stated “Oh, we going to get him [Buterl] free now between me and Waide and all that, and then Dennis is doing his thing on the other one.” During another recorded conversation, Smith receives a call and states, “Hey! How you doing, Jim?” This conversation lasts for over 15 minutes. After the call, Smith tell the confidential informant, “That was Jim Waide.” Smith later tells the confidential informant, “he said we have injunctive and declaratory relief.”
8. As these excerpts plainly reflect, Smith sought to have Waide represent Butler in a pending case, although Butler already had counsel. Since the Christopher Butler case is a central matter in the State’s case against Smith, Waide will be a necessary witness in the State’s case against his client, Smith. While other witnesses might be called to testify about Smith’s involvement in the Butler case, the State will put in issue the question whether Smith sought to engage Waide to represent Butler and, in that respect, Waide’s testimony is necessary to this prosecution and renders Waide disqualified under Rule 3.7.
Where is John Grisham when we need him?